London Borough of Barking and Dagenham v Persons Unknown and others [2022] EWCA Civ 13

On 13 January 2022, the Court of Appeal handed down its long-awaited judgment on the use of injunctions against “persons unknown”. The hearing lasted 3 days and involved 14 barristers. It interrogates the decision of Mr Justice Nicklin who held that the Court cannot grant final injunctions that prevent persons, who are unknown and unidentified at the date of the order (i.e. newcomers) from occupying and trespassing on local authority land. 

The High Court Judge had stated that, whilst interim injunctions could be made against persons unknown, final injunctions could only be made against parties who had been identified and had had an opportunity to contest the final order sought.

The Court of Appeal overturned the decision of the High Court. The lead Judgment was given by the Master of the Rolls. In essence, he held:

  1. The Court can grant final injunctions that prevent persons, who are unknown and unidentified at the date of the order, from occupying and trespassing on land. He rejected the High Court’s judgment that it is fundamental to our process of civil litigation that the Court cannot grant a final order against someone who is not party to the claim. He noted at para 89 that the CPR contains many ways of enforcing an order. CPR 70.4 says that an order made against a non-party may be enforced by the same methods as if he were a party. In the case of a possession order against squatters, the enforcement officer will enforce against anyone on the property whether or not a newcomer.
  2. He rejected the High Court’s bright-line distinction between “interim” and “final” orders. At para 77, the Master of the Rolls states: “there is no meaningful distinction between an interim and final injunction, since, as the facts of these cases show and Bromley explains, the court needs to keep persons unknown injunctions under review even if they are final in character”.
  3. The procedure adopted by Mr Justice Nicklin was “unorthodox”. It was unusual insofar as it sought to call in final orders of the court for revision in the light of subsequent legal developments, but has nonetheless enabled a comprehensive review of the law applicable in an important field.
  4. Whilst it is the Court’s proper function to give procedural guidelines, it cannot and should not limit in advance the types of injunction that may in future cases be held appropriate to make under section 37 against the world.
  5. He cast doubt on the comment of Coulson LJ in the Bromley case that there was “an inescapable tension between the article 8 rights of the Gypsy and Traveller community and the common law of trespass”. It is not right to say that either “the gipsy and traveller community” or any other community has article 8 rights. Article 8 provides that “everyone has the right to respect for his private and family life, his home and his correspondence”. In unauthorised encampment cases, newcomers cannot rely on an article 8 right to respect for their home, because they have no home on land they do not own. They can rely on a private and family life claim to pursue a nomadic lifestyle, but the scheme of the HRA 1998 is individualised.

He cast doubt on the comment of Coulson LJ in the Bromley case that “the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another”. Each member of those communities, and each member of any community, has such a freedom in our democratic society, but the communities themselves do not have Convention rights. Individuals’ qualified Convention rights must be respected, but the right to that respect will be balanced against the public interest, when the Court considers their challenge to the validity of an unauthorised encampment injunction binding on persons unknown.

What is the upshot?

The Court of Appeal has restored the ability of local authorities, in appropriate circumstances and consistent with the safeguards contained within the CPR & the guidance provided in Bromley, to seek injunctions against persons unknown. In essence, the Court of Appeal has rowed back from the prescriptive and restrictive guidance of Mr Justice Nicklin.

The application of the judgment is not limited to gypsy and traveller cases. It is of universal application to urban explorers, protest, car cruising and cyber-attack, to give just a few examples of the subject matter of ‘persons unknown’ injunctions, and those obtain against the whole world.

A link to the judgment can be found here.