Facts of the Case

Between 2015 and 2020, 38 different local authorities were granted injunctions against unknown persons to stop future unauthorised encampments on their land.

These sort of injunctions were initially sought against named individuals known to be actually infringing the local authorities’ property rights, with a sweep up reference to other persons unknown by reference to a particular activity (such as “persons occupying land”). Over time, they became wider, with injunctions issued against so-called “newcomers”: persons unknown who were not occupying the land but could do so in future.

Given the wide reach of these sorts of injunctions, the High Court decided that the principle behind them needed to be reviewed. It, therefore, gave various bodies representing the traveller community, including London Gypsies and Travellers, the chance to be heard in a number of conjoined cases.

In 2021, the High Court decided that newcomer injunctions could only be granted on an interim basis; final injunctions could not be granted as those affected were not parties to the proceedings, had not been served with them and would not have the chance to be heard.

The local authorities appealed, and the Court of Appeal found for them in 2022, finding that the court did have power to grant final injunctions against newcomers. Its reasoning was that those caught by an injunction can be described by reference to the prohibited behaviour, and they effectively become parties to the action if they breach the injunction.

The traveller community groups appealed to the Supreme Court. Given the potential impact of the decision, the Supreme Court also consulted other groups who could be impacted, including Liberty and Friends of the Earth

Definition of a newcomer injunction

The Supreme Court found in favour of the local authorities, and carried out a detailed review of the law of injunctions.

While there are already other types of injunction with similar effects, the Supreme Court said that newcomer injunctions were not just an “evolution” of other kinds of injunction, but a “wholly new type of injunction”, based in equity rather than the common law.

This means the Court has huge flexibility in granting such injunctions. They can develop incrementally, and be “moulded” to the particular circumstances of a case, as the only limiting factors are that it must be “just and convenient” to order an injunction in the circumstances.

The features of a newcomer injunction were defined as being one:

1. made against persons who are truly unknowable, rather than identifiable persons whose names are not yet known;
2. made without notice;
3. involving trespass against land and/or breach of planning control;
4. arising where there is no dispute over the landowner’s right to take back possession of the land;
5. sought in circumstances where the newcomers would be unlikely to engage with the proceedings if they were joined as defendants (e.g. because of lack of representation, an unwillingness to incur costs or simply the short term nature of their occupation);
6. aimed at short term occupation which, if terminated, is likely to be repeated on a nearby site or by different people, so that an injunction against named individuals in respect of a specific occupation are unlikely to be effective;
7. sought for its medium to long term effect, rather than to “hold the ring” in an emergency; and
8. which is not linked to other court processes but a standalone application to protect rights where there is no other effective remedy available.

Newcomer injunctions can be granted without notice

The Supreme Court decided that injunctions could be granted against newcomers but disagreed with the Court of Appeal’s reasoning, which “involves the logical paradox that a person becomes bound by an injunction only as a result of infringing it”.

Instead, the Supreme Court said that injunctions could be ordered against people who had not been served with or notified of them because they would then have the chance to seek to vary or discharge it.

Limits on when newcomer injunctions will be granted

The Supreme Court made it clear that the grant of this kind of injunction is a discretionary remedy, and will only be justified where the following conditions are met:

1. There is a compelling need for an injunction to protect the landowner’s rights

This will be the case where there is a real prospect of the landowner’s rights being infringed, and there is no other adequate remedy.

2. There is procedural protection for the rights of those affected

Given concerns about imposing sweeping injunctions on a wide class of people without notice, the Court will require land owners to take “all reasonable steps to draw the application and any order made to the attention of those likely to be affected by it”.

This includes defining the people to whom the injunction will apply as precisely as possible and trying to reach them through email, social media or advertisements, as well as attaching copies to the land. The Court will also expect these injunctions to include a “generous” ability to apply to challenge the injunction after it has been granted (whether interim or final), likely on short notice.

3. Wide disclosure obligations

Given the one-sided nature of the application, landowners seeking newcomer injunctions must disclose to the court all the facts and arguments that they are aware of, having taken reasonable care to ascertain them. This means facts and arguments that could be relied upon by newcomers to oppose the application, not just those in support. Importantly, this duty includes disclosing relevant information even after the order has been granted and applying for a further hearing if necessary.

4. Clear and Limited scope

The injunction will need to be in clear, plain English and limited in terms of timing and geography, not going further than the minimum necessary and in all cases coming to an end after no more than a year.

5. Just and convenient

It must be “just and convenient” to impose an injunction, balancing the landowner’s rights against the occupier’s rights, including under the European Convention on Human Rights.

Impact on protestor cases

The Supreme Court flagged that newcomer injunctions could also be imposed on protestors engaged in direct action (such as blocking motorways) in the same way. However, they were clear that “nothing we have said should be taken as prescriptive in relation to newcomer injunctions in other cases”, so we may yet see future judgments dealing with this issue.

What is the likely impact of newcomer injunctions?

The Court’s power to grant an injunction against the whole world for behaviour which has not yet taken place, or even been threatened, potentially has a huge reach. However, the Supreme Court has made it clear that landowners have a high hurdle to climb, and must demonstrate that an order of that magnitude is needed, and is framed as tightly as possible.