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In this post, Emma Pinkerton, a Partner in the Real Estate Disputes team at CMS, comments on the Supreme Court’s decision in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47, which was handed down on 29 November 2023.

In our Case Preview we discussed the background to this case in more detail but in summary the primary focus of the Supreme Court was in relation to the apparent distinction between interim and final injunctions and the impact of the grant of either on “newcomers”. 

“Newcomers” are considered to be people who haven’t yet done, or threatened to do anything in breach of the terms of the injunction and so cannot be identified, or participate in the proceedings, at the time when the injunction is made.

Whilst this case related specifically to injunctions obtained by various Councils in relation to traveller encampments the decision is more far reaching.  This is as a result of the rise of the use of similar injunctions against so called “newcomers” in relation to areas as diverse as environmental protests, breaches of intellectual property rights and unlawful activities on social media.

Court of Appeal Decision

The Court of Appeal decided that any newcomer aware of the injunction could become a defendant by breaching its terms. 

This decision was appealed by London Gypsies and Travellers and two other organisations who were granted standing and who had the benefit of a protective costs order granted by the Supreme Court itself.

Appeal dismissed

The Supreme Court has upheld the decision of the Court of Appeal although for different reasons. 

In a very detailed review of the basis upon which newcomer injunctions can be granted, the Supreme Court has decided that this is a newly evolved form of injunction which is essentially one against the whole world. 

The decision was made on the basis that:

  • Injunctions continue to be an equitable remedy – equity looks at substance instead of form rather than being constrained by any rule or principle.
  • The relevant right should be remedial.

The Supreme Court explained that they looked at the way equity has propelled development of injunctions and has broken through every limiting rule.  However, they equally made clear that these newcomer injunctions will only be granted if there is:

  • A compelling need to do so in order to ensure compliance with planning and public law and then only when there is no other available remedy possible to ensure such compliance; and
  • a real and imminent threat of tortious action and high probability that such action will cause harm.

The Supreme Court considered that these newcomer injunctions are essentially always without notice and acting in breach of their terms can result in contempt of court even where proceedings haven’t been served on that person.

The judgment also makes it clear that newcomers are not party to the proceedings and do not become a party simply by breaching the terms of the order.  The preferred analysis is that a newcomer can still be in contempt of court by acting in breach of the order with knowledge of that order on the basis that is an interference with the administration of justice. 

The restrictions placed on persons unknown, including newcomers, should be balanced by ensuring that the order provides for liberty to apply and set aside the injunction in the widest terms.

In addition, there must be protections afforded by the actions of the claimants throughout the proceedings. Whilst this is not a change per se it is now beyond any doubt that anyone applying for an injunction against persons unknown and potential newcomers should make full disclosure to the court (after due research of facts and matters) that may go against the injunction they are seeking and that this is a continuing duty.

Finally, a number of principles were affirmed by the Supreme Court including:

  • That there needs to be a very precise definition of newcomers – particularly by reference to conduct expressed in clear, understandable terms.
  • The terms of the order need to be clear and precise – these should, so far as possible, relate to the threatened or actual unlawful activity.
  • The order must provide specific geographical restrictions – clear maps should be used where possible.
  • The order should be limited temporally – in a departure from previous decisions, the Supreme Court indicated that, at least in relation to traveller cases, this should be limited to a year.

Conclusion

This decision provides guidance to those making applications for injunctions which may include newcomers and clarified that this equitable jurisdiction should be prepared to flex to keep pace with the changing legal landscape.  What hasn’t changed is the need for careful consideration of the facts and evidence in support of any application and the need to be very precise in the way in which they are then formulated.