Fri, 14 May 2021
On 12 May 2021, Nicklin J handed down judgment in the case of London Borough of Barking and Dagenham v Persons Unknown [2021] EWHC 1201 (QB). It followed a 2 day final hearing involving 13 barristers. The case grouped together 38 claims in which Traveller Injunctions were granted to be managed by a single judge from October 2020. The Judgment is lengthy and contains a lot of material of interest to practitioners in the area. The implications of the Judgment are profound and are not confined to those practising in the area of unauthorised encampments and trespass.
The Reach of Injunctions Against Persons Unknown
In Canada Goose UK Retail Limited -v- Persons Unknown, involving protestors, the Court of Appeal drew a distinction between final and interim orders. In relation to the grant of interim injunctions, a quia timet injunction could be granted against newcomers (i.e. persons who had not committed any of the prohibited acts at the time when the injunction was granted). But the Court held that injunctions granted by final order against “Persons Unknown” could bind only those who were parties to the proceedings at the date of the grant of the order, not newcomers.
In this case, the Judge found that the same approach in respect of protestors applied to unauthorised encampments. He ruled [para 175]:
I reject the submissions that Traveller Injunctions are not subject to these fundamental rules of civil litigation or that the principle from Canada Goose is limited only to ‘protester’ cases, or cases involving private litigation. The principles enunciated by the Court of Appeal in Canada Goose (drawn from the Supreme Court decision in Cameron) are of universal application to civil litigation in this jurisdiction. Local authorities, bringing litigation for the public good, may be afforded certain privileges, for example that, generally, they are excused from the requirement to give a cross-undertaking in damages when seeking an interim injunction, but otherwise they are subject to the same rules that apply to all litigants who pursue civil claims.
The Court went on to consider whether an injunction could be made against the world (“contra mundum”). The Judge rejected this proposition. Having explored the technical objections he went on to consider the practical difficulties, stating [paras 24 and 235]:
Indeed, the whole structure of “Persons Unknown” litigation, and a fortiori claims for injunctions contra mundum, because there is no focus on individuals, means that Court can only carry out any assessment based on rival generalities. Worse, it is an assessment that risks a significant element of in-built prejudice. On the basis of evidence of the worst examples of historic wrongdoing by some, unidentified persons, the Court is asked to impose an injunction to restrain future conduct of unidentified (and unlimited) newcomers, including those who were not guilty of any of the acts of wrongdoing relied upon to support the injunction application. If the Court cannot identify the individuals who will be restrained by the injunction, it cannot begin to assess the particular circumstances of each person to be restrained, whether an injunction is necessary in that person’s case and whether the terms of the injunction are proportionate (see LB Bromley [104]). It is difficult to see how the claimant would begin to demonstrate the required evidence of “irreparable harm” if it cannot identify the persons who it claimed would cause it (see [13(3)] above). Put shortly, it is impossible to carry out the required parallel analysis of and intense focus upon the engaged rights. In LB Bromley the Court of Appeal expressed concern that closing down unlawful encampments on land and moving on Gypsies and Travellers must be regarded as a last resort: [101]. Prospectively making a contra mundum injunction prohibiting all encampments is arguably worse.
The Court observed that local authorities already possess extensive powers to tackle unauthorised encampments and the harm associated with them. That some of these remedies are not as effective (and/or are more expensive) than civil injunctions is not a good reason for granting contra mundum civil injunctions. He stated that civil injunctions may have a role to play in tackling unauthorised encampments, but, as targeted measures, where justified by evidence, against actual wrongdoers (or those who present a real and imminent threat of wrongdoing), in proceedings in which those to be made subject to the Court’s jurisdiction have an opportunity to be heard.
Procedural Safeguards
Aside from deciding the point of legal principle about the extent to which injunctions can bind newcomers, the Judge emphasised the importance of procedural safeguards in cases such as this when, in reality, the defendants will rarely attend or be represented.
First, the Claim Form must be served on “Persons Unknown” and given that personal service is not possible a proper application for service by alternative means supported by evidence must be made which is fully compliant with CPR r6.15. In practical terms, the Council will be expected to demonstrate, by evidence filed in compliance with CPR 6.15(3)(a), how the proposed method of alternative service on the Persons Unknown can reasonably be expected to bring the proceedings to the attention of all of those who are sought to be made defendants. The Judge doubted that the “usual” means of staking copies of the documents in water-proof plastic envelopes at the entrance to each site would be sufficient.
Second, a Council who had (i) obtained an injunction against Persons Unknown ex parte and (ii) become aware of a material change of circumstances (including a change in the case-law) which gives rise to a real prospect that the court would amend or discharge the injunction, was under a duty to restore the case within a reasonable period to the court for reconsideration.
Third, the Judge rejected the Councils’ jurisdictional argument that, once a Court has granted an injunction by final order, the Court cannot exercise the power granted under CPR 3.1(7). He held that it is 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: CPR r3.1 (7).
At the end of the Judgment [para 24] the Judge sets out the following safeguards which should apply in future cases coming before the Court:
(1) The “Persons Unknown” must be described in the Claim Form (or other originating process) (a) with sufficient certainty to identify those who are defendants to the claim and those who are not, and (b) by reference to conduct which is alleged to be unlawful: see [49] above.
(2) Where they apply, the Claim Form must comply with the requirements of CPR 8.2A(1) and Practice Direction 8A.
(3) The “Persons Unknown” defendants identified in the Claim Form are, by definition, people who have not been identified at the time of commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. “Persons Unknown”, against whom relief is sought, must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary, by alternative service of the Claim Form: Canada Goose principle (1).
(4) Any application for permission to serve the Claim Form on “Persons Unknown” must comply with CPR 6.15(3) and the claimant must demonstrate, by evidence, that the proposed method of alternative service is such as can reasonably be expected to bring the proceedings to the attention to all of those in the category of “Persons Unknown” sought to be made defendants to the proceedings: Cameron principle (4); and any order under CPR 6.15 must comply with CPR 6.15(4).
(5) Applications for interim injunctions against “Persons Unknown” must comply with the requirements of Practice Direction 25A and, unless justified by urgency, must be fixed for hearing and a skeleton argument provided.
(6) At the hearing of an application for an interim injunction against “Persons Unknown” the applicant should be expected to explain why it has not been possible to name individual defendants to the claim in the Claim Form and why proceedings need to be pursued against “Persons Unknown”.
(7) An interim injunction will only be granted quia timet if the applicant demonstrates, by evidence, that there is a sufficiently real and imminent risk of a tort being committed by the respondents: Canada Goose principle (3).
(8) If an interim injunction is granted:
a) the claimant should provide an undertaking to the Court to use its best endeavours to identify the “Persons Unknown” whether by name or other identifying information (e.g. photograph) and serve them personally with the Claim Form;
b) the terms of the injunction must comply with Canada Goose principles (5) to (7);
c) the Court must be satisfied that the inclusion of any power of arrest is justified by evidence demonstrating that the relevant statutory test is met; and
d) the Court in its order should fix a date on which the Court will consider the claim and injunction application further (“the Further Hearing”). What period is allowed before the Further Hearing is fixed will depend on the particular circumstances, but I would suggest it should not be more than 1 month from the date of the interim order, and in many cases, a shorter period would be appropriate.
(9) At the Further Hearing, the claimant should provide evidence of the efforts to identify the “Persons Unknown” and make any application to amend the Claim Form to add named defendants. The Court should give directions requiring the claimant, with a defined period:
a) if the “Persons Unknown” have not been identified sufficiently that they fall with Category 1 “Persons Unknown”, to apply to discharge the interim injunction against “Persons Unknown” and discontinue the claim under CPR 38.2(2)(a);
b) otherwise, as against the Category 1 “Persons Unknown” defendants to apply for (i) default judgment; or (ii) summary judgment; or (iii) a date to be fixed for the final hearing of the claim,
and, in default of compliance, that the claim be struck out and the interim injunction against “Persons Unknown” discharged.
(10) Assuming that the claimant has demonstrated an entitlement to relief against a party to the claim, in respect of any final order that is granted against “Persons Unknown” (whether by default judgment, summary judgment or after a final hearing), unless falling in the exceptional category where a contra mundum order is justified, the order:
a) can only be made against parties to the proceedings: those named defendants, or those who fall into Category 1 of “Persons Unknown”, who have been served with the Claim Form;
b) must clearly identify by description the Category 1 “Persons Unknown” defendants that are bound by the order; and
c) must not be drafted in terms that would capture newcomers, i.e. persons who are not parties when the order is granted: Canada Goose [91]-[92].
What is the practical effect of this Judgment?
In essence, it puts a stop to the use of injunctions of this sort against Persons Unknown. The fact that final orders cannot bind newcomers effectively robs the remedy of its utility. The safeguards required by the Court particularly in relation to identifying Persons Unknown and taking steps to serve them are very, very difficult to surmount.
It is understood that some of the local authorities intend to appeal. So: watch this space.
