In Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] the Supreme Court has determined whether a court has the power to grant a "newcomer injunction", which binds persons who are not identifiable at the time when the order is granted and who have not at that time infringed or threatened to infringe the Claimant's rights, but may do so at a later date.
After a detailed analysis of the above issues in the context of the evolution of injunctions of this or a similar nature the Court identified various distinguishing features of newcomer injunctions.
These included the fact that they are made against persons who are truly unknowable and therefore apply potentially to anyone in the world and they are always made on a without notice basis.
They are also made in cases where the persons restrained are unlikely to have any right to do the thing that is prohibited by the order so that there is unlikely to be any triable issue of fact or law.
In addition to this, based on the experience of the courts, the newcomers would be unlikely to engage with any proceedings and the usual processes of eviction/injunction against named parties are inadequate because the occupation is short term and may just be repeated on a nearby site or by different travellers on the same site. In contrast, the newcomer injunction is sought for its medium to long term effect and to provide possibly the only effective means available of protecting the relevant rights.
In view of this the Court decided that the newcomer injunction is a wholly new type of injunction.
It then examined the basis of a court's power to grant them in section 37 of the Senior Courts Act 1981 which provides that the High Court may grant an injunction in all cases in which it appears to the court to be "just and convenient" to do so.
The Court considered the equitable principles governing situations where it would be "just and convenient" and concluded that there is no immovable obstacle in the way of granting newcomer injunctions subject to compliance with the following considerations/conditions:
- There is a compelling need, backed up by evidence, for the protection of civil rights or enforcement of planning control/prevention of anti-social behaviour/such other statutory objective which is not adequately met by any other measures (including the making of byelaws);
- There is procedural protection for any rights of newcomers including an obligation to take reasonable steps to draw the application and order to their attention and liberty to apply to have any injunction varied or set aside;
- Applicants must disclose any correspondence with newcomers in which they oppose the grant of an injunction;
- Injunctions are tailored in both geographical extent and duration; and
- It must otherwise be just and convenient to grant the injunction in all of the circumstances.
The decision is a detailed guide on local authorities' ability to apply for injunctions against newcomers in relation to traveller encampments. The Court has, however, also recognised that it will have much wider significance and will be relevant wherever there is a potential conflict between the maintenance of public or private rights and the future behaviour of individuals who cannot be identified in advance.
