Supreme Court confirms power to grant ‘newcomer injunctions’.
Facts:
Since 2015, various local authorities have obtained injunctions to prevent Gypsies and Travellers from camping on local authority land without permission. The injunctions were addressed to "persons unknown" because the Gypsies and Travellers who might wish to camp on a particular site could not generally be identified in advance.
Local authorities preferred seeking ‘newcomer injunctions’ as the eviction process is usually inadequate. Indeed, by the time the local authority has usually commenced proceedings, the original group has often already been replaced by others against whom the proceedings have no effect. Such injunctions were obtained by local authorities without notification to any other party, meaning that the interests of Gypsies and Travellers were not represented.
From around mid-2020, local authorities made applications to extend or else vary injunctions which were coming to an end. After reviewing some newcomer injunctions, the High Court Judge decided that the Court did not have the power to grant newcomer injunctions, except on a short-term, interim basis and, therefore, discharged those orders.
Decision:
The Supreme Court unanimously held that the Court has the power to grant a wholly new type of injunction, known as a ‘newcomer injunction’. Such an injunction can be granted without prior notice to prevent persons who are unknown and unidentified at the time of the order and who have not yet performed – or even threatened to perform – the very acts that the injunction prohibits. However, courts should only exercise this power in those circumstances where there is a compelling need to protect civil rights or to otherwise enforce public law where no other remedies can achieve such a result.
The Court also noted that newcomer injunctions are a new type of contra mundum injunction and are not constitutionally improper. The Court also explained that the ‘without notice’ element is inherent to this type of injunction because ‘newcomers’ are, by their nature, unidentifiable. The Supreme Court also agreed with the Court of Appeal’s finding that there is no real distinction between interim and final injunctions in these proceedings.
The Court also restated that such injunctions are based on equitable principles and have been restated by Parliament in Section 37(1) of the Senior Courts Act 1981. They may be granted in new circumstances as long as the principles of equity and justice are respected. The Court added that “newcomer injunctions should only be made subject to procedural safeguards designed to protect newcomers’ rights.”
The Supreme Court has given guidance on the application of the equitable principle and stated that an application is only likely to be justified if, firstly it is demonstrated that there is a compelling need to protect civil rights and/or enforce public law that is not adequately met by any other remedies; and secondly, where there are adequate procedural safeguards built into both the application and the court order, including an obligation to take all reasonable steps to draw the application and any order made to the attention of those likely to be affected by it. This would allow provision of the most generous provisions for liberty to apply to have the injunction varied or set aside. Third, it must comply in full with the disclosure duty and finally, it has been reasonably shown that it is just and convenient in all circumstances that the order sought should be made.
To ensure fairness, the Supreme Court has stated that, in most newcomer cases, especially those relating to Gypsy and Travellers, the order should be limited to a duration of no more than one year unless the applicant applies successfully to extend the duration of the injunction.
Implication:
The decision brings clarity on ‘newcomer’ injunctions in the context of Gypsies and Travellers. This judgement not only provides guidance on how such an application is justified, but also grants local authorities effective means of enforcing their legal rights. The Court also made it clear that such power should be exercised only in such circumstances where there is a real need to enforce public law or protect civil rights and where no other remedies available can secure such rights.
This case has potentially significant implications in diverse contexts whereupon injunctions may be used including breaches of planning control, industrial picketing or protests. Indeed, the Court did not limit newcomer injunctions to Gypsy and Traveller trespass cases. As a result, if an applicant can demonstrate a compelling need for the enforcement of public law or the protection of civil rights, they could apply for a newcomer injunction so long as safeguards are in place.