In this post, Frankie McPeanne, a trainee solicitor, and Emma Pinkerton, a Partner, both in the Real Estate Disputes team at CMS, preview the decision awaited from the Supreme Court in Wolverhampton City Council and others (Respondents) v London Gypsies and Travelers and others (Appellants), which is due to be heard on 8 February 2023.
This case concerns the issue of granting injunctions against persons unknown in respect of unauthorized encampments (colloquially known as “traveller sites”).
The primary consideration for the Supreme Court will be whether the court can grant final injunctions that prevent persons who are unknown and unidentified as at the date of the order (“newcomers”), from occupying and trespassing on land.
Wolverhampton City Council’s application for an injection
In Wolverhampton City Council v Persons Unknown  EWHC 3777 (QB), Wolverhampton City Council sought an injunction that would restrain the establishment of unauthorized traveler encampments from approximately 60 sites across an area controlled by the local authority. The application was made following an increasing number of unauthorized traveler encampments in the area. Jefford J summarized the impact of these unauthorized encampments as being two-fold. First, the use and enjoyment by other citizens of the public open spaces that were occupied by the encampments was inhibited. Second, there have been numerous instances of antisocial behavior linked with the unauthorized encampments. These instances were evidenced in witness statements provided by the applicant and included abusive and threatening behavior towards members of the public.
Jefford J granted an interim injunction for a period of three years coupled with a power of arrest pursuant to the Police and Justice Act 2006, s.27. The injunction was granted with a review hearing to take place after 12 months, in order to give Wolverhampton City Council time to establish the transit site it had committed to making available to members of the traveler community, or alternatively, to show the court that it was was taking appropriate steps as required by the Equality Act 2010, to ensure members of the traveling community would not be effectively excluded from the whole of the area within Wolverhampton City Council’s control.
Upon review after the initial 12 months, the injunction was continued for another two years, with a further review ordered to take place in July 2020. Following that review, the injunction was further continued until 5 December 2021.
High Court appeal by numerous local authorities (including Wolverhampton City Council)
In London Borough of Barking and Dagenham, Other Local Authorities v Persons Unknown, Other named Defendants v London Gypsies and Travelers, Friends, Families and Travelers, National Federation of Gypsy Liaison Groups  EWHC 1201 (QB), the High Court considers issues in relation to “traveller injunctions”. Numerous local authorities have been granted wide injunctions against persons unknown, prohibiting unauthorized occupation of land; these injections were primarily targeted at “traveller sites”. However, a number of issues that were likely to arise in other cases have been identified during a hearing in relation to one of the local authorities’ injunctions.
In particular, the High Court had to consider whether a final injunction granted against unknown persons is subject to the principle that final injunctions only bind the parties to the proceedings at the time the order is made (ie, they cannot apply to “newcomers”) . Local authorities contended that such injunctions should not be bound by this principle. However, Nicklin J ultimately decided that the local authorities’ injunctions would be discharged against newcomers.
The Court of Appeal’s decision
In Barking and Dagenham and Others v Persons Unknown and Others,  EWCA Civ 13 a number of local authorities, including Wolverhampton City Council, sought permission to appeal the decision by Nicklin J. The appeal was allowed.
In his judgment, Vos J stated that Nicklin J had been wrong to hold that the court cannot grant final injunctions that prevent persons unknown and unidentified at the date of the order from occupying and passing on local authority land after the date of that order
Vos J made the point that there is no real distinction between interim and final injunctions, particularly when granted against persons unknown. He cited the cases of South Cambridgeshire District Council v. Gammell  EWCA Civ 1429 (“Gammell”), and Ineos Upstream Ltd v. Persons Unknown and others  EWCA Civ 515 (“Ineos”) which each decided and confirmed that final injunctions could validly be granted against newcomers, as opposed to only the parties to the proceedings. In such cases it was also held that a person violating a “persons unknown” injunction became a party to the injunction where they had notice of its terms. Further, it was held that certain aspects of the court’s reasoning in Canada Goose UK Retail Ltd. v. Persons Unknown and another  EWCA Civ 303 (“Canada Goose”), which Nicklin J had sought to rely on, did not give proper regard to Gammell, which was binding on the Court of Appeal in Canada Goose.
Vos J stated that the Human Rights Act 1998 is individualized, and as such neither the gypsy and traveler community nor any other community has Article 8 rights (a person’s right to respect for their private and family life, home and correspondence). Further, in unauthorized encampment cases such as this one, newcomers (as individuals) cannot rely on their Article 8 rights in terms of a right to respect for their home, because they have no home on land they have no legal right to.
However, an individual newcomer who makes himself party to an unauthorized encampment injunction would have the opportunity to apply to the court to set aside the injunction, relying on their private and family life right to pursue a nomadic lifestyle (and previous case law has established that the pursuit of a traditional nomadic lifestyle is an aspect of a person’s private and family life). Further this right should also be considered when the court initially considers granting an injunction against persons unknown. It must also be carefully balanced against the landowner’s specific Convention rights under Article 1 Protocol 1 to the peaceful enjoyment of one’s property (which includes land). As such, Vos J held that the only time a court can test whether an order for an injunction against persons unknown interferes with a particular person’s Article 8 rights and whether that order is proportionate, is if that person comes to court to resist the making of such an order or to challenge the validity of the order once it has been made.
London Gypsies and Travelers and others were granted permission to appeal this decision on 25 October 2022. The appeal will be heard by the Supreme Court on 8 February 2023.
Case law to date has established and supported the principle that individuals can make themselves parties to a “persons unknown” injunction by knowingly breaching the terms of the injunction, and thus it is lawful for the court to grant final injunctions against newcomers.
This appeal brought by London Gypsies and Travelers and others will have important implications in this area of the law surrounding injunctions against unknown persons. Such injunctions are particularly relevant in the context of unauthorized encampments and protest activities. Those seeking to acquire and rely on “unknown persons” injunctions in safeguarding their land and other property from future trespass, unauthorized occupation or protest activity will be keen to hear the outcome of this appeal.