Marc Willers KC, Tessa Buchanan and Owen Greenhall, of the Garden Court Chambers Romani Gypsy and Traveller Rights Team, represented London Gypsies and Travellers (LGT), Friends Families and Travellers (FFT) and the Derbyshire Gypsy Liaison Group (DGLG), with Richard Drabble KC of Landmark Chambers. They were instructed by Chris Johnson of Community Law Partnership (CLP).
Stephanie Harrison KC, Stephen Clark and Fatima Jichi, of the Garden Court Chambers Protest Rights Team, represented Friends of the Earth (FoE,) interveners in the case, instructed by Hodge Jones & Allen and in-house legal specialists. Human Rights organisation Liberty also intervened in the case.
Between 2015 and 2020 numerous local authorities had obtained wide injunctions against persons unknown prohibiting unauthorised camping on public land in their localities – some going so far as to prohibit camping on all public land in their boroughs and districts. In the case of Bromley London Borough Council v Persons Unknown [2020] EWCA Civ 12, the Court of Appeal upheld the decision of the High Court to refuse a borough wide injunction and laid down guidance on the steps that a local authority should take before seeking such an injunction, making the point that such an injunction should only be sought as a last resort.
Following that decision the High Court reviewed wide injunctions that had been obtained by other local authorities. The High Court discharged a number of them, having concluded that it had no power to make a final injunction which would bind persons unknown (or ‘newcomers’, that is persons who were not party to the injunction proceedings) - in reliance upon a decision of the Court of Appeal in the case of Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303 case.
The local authorities appealed against that decision and the Court of Appeal allowed their appeal having concluded that final injunctions could, as a matter of principle, be granted against newcomers.
London Gypsies and Travellers (LGT), Friends Families and Travellers (FFT) and the Derbyshire Gypsy Liaison Group (DGLG) had been granted permission to intervene in the proceedings before the High Court and the Court of Appeal. They were then granted permission to appeal to the Supreme Court against the decision of the Court of Appeal on the question whether final injunctions could be granted against newcomers.
The Supreme Court dismissed the appeal having concluded that injunctions, whether described as interim or final, could, as a matter of principle, be granted against newcomers but for different reasons than those given by the Court of Appeal. Essentially, the Supreme Court considered that newcomer injunctions were an equitable remedy that ought to be available to the Court in appropriate cases where other remedies available are inadequate to vindicate or protect the rights in issue.
However, importantly, the Supreme Court recognised the effect that such injunctions had upon the ability of Gypsies and Travellers to live their traditional nomadic way of life, not least because of the continuing lack of caravan site provision [paras 74-78]. The Supreme Court also noted the Court of Appeal’s decision in the Bromley case [para 90-95] and the guidance that it gave on the approach to be adopted by a local authority seeking a wide injunction and a Court determining such an application.
The Supreme Court then built upon the decision in Bromley and helpfully gave its own guidance on the grant of newcomer injunctions which prohibited unauthorised camping by Gypsies and Travellers [see paras 187-234 and the summary at para 238 (iv)].
It should be noted that in doing so the Supreme Court stated there should be strict limits on the length and geographical scope of any newcomer injunction which prohibited unauthorised camping by Gypsies and Travellers. In para 225 the Supreme Court stated that “We have considerable doubt as to whether it could ever be justifiable to grant a Gypsy or Traveller injunction which is directed to persons unknown, including newcomers, and extends over the whole borough or for significantly more than a year. It is to be remembered that this is an exceptional remedy, and it must be a proportionate response to the unlawful activity to which it is directed. Further we consider that an injunction which extends borough-wide is likely to leave the Gypsy and Traveller communities with little or no room for manoeuvre, just as Coulson LJ warned might well be the case (see generally, Bromley, paras 99-109).”
Significantly, when LGT, FFT and DGLG were granted permission to appeal they were also granted protective costs order (PCO) by the Supreme Court. The grant of a PCO is a novel feature of the case and potentially creates a blueprint for other charities seeking to take part in future newcomer injunction proceedings.
Marc Willers KC of Garden Court Chambers, lead counsel in the case, stated:
“The Supreme Court’s decision emphasises that wide injunctions which prohibit Gypsies and Travellers from camping on public land have a negative impact on their ability to pursue their traditional nomadic way of life and that they should only be sought and granted in exceptional circumstances, with strict limits on their length and geographical scope and after local authorities have complied with guidance laid down in the judgment."
"Significantly, the Supreme Court said that it had ‘considerable doubt as to whether it could ever be justifiable to grant a Gypsy or Traveller injunction which is directed to persons unknown, including newcomers, and extends over the whole borough or for significantly more than a year.' and recognised that 'an injunction which extends borough-wide is likely to leave the Gypsy and Traveller communities with little or no room for manoeuvre’.”
Although the Supreme Court today did not uphold the appeal, it recognised the rights of Gypsy and Traveller communities to maintain their nomadic way of life, and made important findings which limit the basis for making these injunctions, making it more difficult for them to be used against these communities. The Court also provided guidance which will limit the scope of the injunctions and is likely to prevent them from operating across entire boroughs and for indefinite periods of time. This is highly significant for the injunctions currently in place, given the breadth of land that many of them cover, and the fact that they will be coming up for review by the courts.
However, these constraints do not apply to protest-related injunctions, and the Court ruled that persons unknown injunctions can continue to be used against people who were not involved in the activity or protest that was the target of the original injunction, meaning that environmental protestors continue to be at risk from this parallel system of criminal justice.
Abbie Kirkby, Head of Policy and Public Affairs at Friends, Families and Travellers said this about the discriminatory nature of the wide injunctions:
“We have been determined to challenge the discriminatory and disproportionate use of these injunctions, used to target Gypsy and Traveller families who have nowhere else to stop. This is just one of the very many prohibitive approaches and eviction powers used to target Travellers and it’s key that the Supreme Court recognises the significance of the lack of site provision and the need for 'compelling justification’ for such an order to be sought and granted by the Court. We see this as a shot across the bows to local authorities – that their hostile approaches to Traveller communities will not go unchecked.”
Katie de Kauwe, a lawyer at Friends of the Earth, which supported the legal challenge over concerns that ‘persons unknown’ injunctions are increasingly being used against environmental protesters, as well as targeting already marginalised Gypsy and Traveller communities, said:
“As an environmental justice organisation, Friends of the Earth is proud to have intervened in support of this important appeal challenging the use of draconian, ‘borough-wide’ injunctions targeting Gypsy and Traveller communities. Although the appeal was rejected, there are positive aspects that will make it harder for local authorities to obtain these sorts of injunctions in relation to these communities."
FFT, LGT and DGLG were represented by Chris Johnson of Community Law Partnership (CLP), Marc Willers KC, Tessa Buchanan and Owen Greenhall of Garden Court Chambers, and Richard Drabble KC of Landmark Chambers. Friends of the Earth (FoE,) interveners in the case, were represented by Stephanie Harrison KC, Stephen Clark and Fatima Jichi, instructed by Hodge Jones & Allen and in-house legal specialists. Human Rights organisation Liberty also intervened in the case.
Marc Willers KC, Tessa Buchanan and Owen Greenhall are members of the Garden Court Chambers Romani Gypsy and Traveller Rights team. Stephanie Harrison KC, Stephen Clark and Fatima Jichi are members of the Garden Court Chambers Protest Rights Team.
Click here to read the judgment.
Click here to read Friends Families and Travellers (FFT) press release.
Click here to read Friend of the Earth's (FoE) press release.
