Gypsy and Traveller injunctions against 'newcomers’ ruled unlawful

Summary

Judgment has been handed down in an important case that directly concerns 38 different local authorities and which has implications for many more cases.  Mr Justice Nicklin has ruled that final injunctions granted against “Persons Unknown” are subject to the fundamental principle that a final injunction operates only between the parties to the proceedings and does not bind newcomers.  The Judge also decided that injunctions to restrain unauthorised encampment do not fall into the exceptional category of civil injunction that can be granted contra mundum. 
 

Background

The last few years have seen what the Court of Appeal (in Bromley London Borough Council v Persons Unknown [2020] EWCA Civ 12), described as a “recent spate of wide-ranging injunctions…aimed at the Gypsy and Traveller community” which had become “something of a feeding frenzy”.  In the Bromley case (in which Marc Willers QC and Tessa Buchanan acted for the Interveners), the Court of Appeal recognised the vulnerable position of Gypsies and Travellers and the fact that occupation of a caravan was an integral part of their ethnic identity.  The Court gave general guidance about when such injunctions should be granted, noting that there was an “inescapable tension between the article 8 rights of the Gypsy and Traveller community…and the common law of trespass”, the obvious solution to which was “the provision of more designated transit sites”.  Borough-wide injunctions were described as “inherently problematic”.  The Court noted that the Gypsy and Traveller community “have an enshrined freedom not to stay in one place but to move from one place to another”.

Following this and other relevant decisions, none of the 38 local authorities that had obtained such injunctions returned to Court to have the legality of their injunctions re-examined.  Instead, a number of local authorities whose injunctions were due to end sought to “extend” or “renew” them.  A hearing in one of those cases led to issues being raised which suggested that there was a need to review all the cases. As a result, the 38 claims (the “Cohort Claims”) were gathered together to be managed by a single judge.

This process resulted in 19 of the injunctions being discharged.  As described by Mr Justice Nicklin at para 39 of the judgment:

“In these cases, there were fundamental failures properly to serve the Claim Form or to obtain valid orders for alternative service on Persons Unknown”.

Hearing and judgment

By the time of the January 2021 hearing, four issues of principle for the Court to determine had been identified.  These were:

• Whether the Court has the power to case manage the proceedings and/or vary or discharge injunctions that have previously been granted by final order;
• Whether the Court has jurisdiction and/or whether it is correct in principle to grant a claimant local authority final injunctive relief either against Persons Unknown (who are not, by the date of the final hearing, parties to the proceedings) and/or on a contra mundum basis;
• If the Court did not have such jurisdiction, whether it is possible to identify the defendants in the category of Persons Unknown who were bound by the injunction and, in so far as the final injunction binds newcomers, whether it should be discharged; and
• If there was no jurisdiction to grant such final relief, in what circumstances the Court should be prepared to grant interim injunctive relief against Persons Unknown.

On the first issue, the Judge held that the Court did have jurisdiction over the final injunctions, which had been granted both because their terms expressly provided for the Court to have continuing jurisdiction, and because the injunctions applied to newcomers who were not parties to the proceedings when the relevant order was granted.  It was a “fundamental requirement of justice that, where an injunction has been granted by the Court, whether interim or final, that has the potential to bind people who have not had the opportunity to be heard before the order was granted, the Court must retain jurisdiction to set aside or vary that order, whether on application by the person affected or, if necessary, on its own initiative” (para 146).

On the second – and central – issue, the Judge held that the injunctions were subject to the fundamental principle that a final order cannot bind persons who are not party to the proceedings:

“Nothing in s.222, s.187B, or s.1 ASBCPA (or any of the authorities) suggests that Parliament has granted to local authorities, exceptionally, the ability to obtain final injunctions in civil proceedings against “Persons Unknown” which apply to and bind newcomers. Given that, in my judgment, the granting of such a power would represent a radical (and unprecedented) departure from the principles of civil litigation in this jurisdiction, one would have expected to see such a power granted by express words. There is no hint of such a power in the legislation” (at para 176).

Further, whilst the Court had a power to grant orders contra mundum – i.e. orders which bound the whole world – the circumstances in which the Court would exercise this jurisdiction were very limited and the injunctions in these cases did not “fall into the exceptional category” where such relief would be granted (para 233).

As to the third issue, the Judge indicated that “The injunctions will be discharged against newcomers” and the affected local authorities would be given “a limited period to identify, if they can, any individual whom they contend were parties to the proceedings under the relevant definition of 'Parties Unknown'” (para 241).

On the fourth and final issue, Mr Justice Nicklin noted that whilst interim relief was intended to protect the status quo pending a final determination, a final injunction was part of the remedy to which the claimant had demonstrated an entitlement.  Interim injunctions could be granted against Persons Unknown where the Court was satisfied that people existed who, even if they could not be named, could be identified and served with the proceedings (if necessary by an order for alternative service such as could reasonably be expected to bring the proceedings to their attention) and only where there was a sufficiently real and imminent risk of a tort being committed to justify quia timet relief.

The Judge concluded by observing that (para 246):

“…my overall consideration of the Cohort Claims has led me to conclude that there are grounds to suspect that, in a significant number of applications for interim injunctions, there were material and serious breaches of the procedural requirements and the procedures of the Court (and Court 37 in particular) have been abused. As I have already noted, a significant number of the Cohort Claims were allowed to go to sleep following the grant of an interim injunction, and no local authority, which had been granted a Traveller Injunction, returned the claims to Court for reconsideration following the decisions of LB Bromley and Canada Goose. This judgment is not the place to go into these matters further, but I will ensure, so far as possible, that they will be properly investigated.”

When asked to comment about the decision, Marc Willers QC said:

‘"Mr Justice Nicklin’s judgment is a tour de force and will be required reading for any lawyer practising in this field. The decision reaffirms the fundamental principle that final injunctions do not bind newcomers. The Judge rejected the submission that injunctions against Gypsies and Travellers were an exception to this rule. The decision also emphasises the need for rigorous compliance with the rules of civil procedure, with the Judge concluding that there were grounds to suspect that there had been material and serious breaches of procedure in a significant number of cases brought by local authorities. The judgment also recognises the right of Romani Gypsies and Irish Travellers to respect for their cultural traditions, including their enshrined right to travel, as emphasised by Lord Justice Coulson in the Bromley case in 2020."

You can find the Judgment here.