Supreme Court confirms that injunctions can be granted against "newcomers" with relevance to unauthorised encampments and trespassers

On 29 November 2023, the Supreme Court handed down their decision in the case of Wolverhampton City Council and Others v London Gypsies and Travellers and Others [2023] UKSC 47. 

The decision was the culmination of appeals relating to injunctions obtained by a number of local authorities between 2015 and 2020 against ‘Persons Unknown’, which sought to prohibit unauthorised encampments. These were often obtained on a borough wide basis with the orders placed on prominent areas of the affected land, and they then applied to anyone who carried out any act in breach of the terms of the injunction. At the time the injunctions were obtained, they were often applied for without notice and the terms were effectively binding on the entire world. The significant impact was on the Gypsy and Traveller communities who these injunctions were aimed at preventing setting up unauthorised encampments on local authority land.

The decision of the Supreme Court unanimously confirms that courts do have the power to grant injunctions against “newcomers" and that these are in fact a new type of injunction. “Newcomers” are persons who at the time of the proceedings being issued and the injunction granted, are unknown and unidentified, and who haven't yet performed, or even threatened to perform, the acts which the injunction prohibits. 

The decision provides a helpful list of what a court should be considering when dealing with an application seeking to prohibit unauthorised encampments as follows:-

1. The applicant should demonstrate that there is a compelling need to protect civil rights or enforce public law which is not adequately met by any other remedies available;
2. That there are suitable procedural safeguards built into the application and the order, which are adequate to overcome the potential for injustice which arises as the application is by its very nature made without notice to the “newcomers”. This will likely include provisions about advertising and publicising the application so that any affected persons could be alerted to this; provisions in the order allowing any persons affected to apply to have the order varied or set aside; and ensuring that the order is only as wide as it needs to be in scope, both in terms of length of time and geographical extent; 
3. That the applicant complies with the full and frank duty of disclosure applicable to without notice applications, which includes them notifying the court of any matter which a “newcomer” might raise to oppose the making of an order; and
4. That it is just and convenient in all of the circumstances of the case that a “newcomer” injunction be granted.

The Supreme Court concluded that if these considerations were met, there was no reason in principle that a “newcomer” injunction couldn't be granted. 

This confirmation, and the guidance provided around the relevant factors to be considered when making and considering such applications, will be welcomed by local authorities for clarifying what has been a long line of cases - the full judgment in this case is 238 paragraphs over some 77 pages illustrating the extent of the previous case law the Supreme Court were considering! Whilst the decision does predominantly relates to “newcomer” injunctions concerning unauthorised encampments,  it is likely to have wider application to other cases where “newcomer” injunctions might be sought, including protesting and picketing cases.

In terms of the application to other registered providers of social housing and landowners generally in terms of trespass proceedings, the decision certainly in principle provides confirmation that an injunction to prohibit future conduct of unknown individuals is available. Each case will turn on its own facts and the decision provides a useful summary of what the court is going to be concerned with, which provides helpful guidance for applicants wishing to make such applications.

If you have any queries about the judgment or about trespass proceedings generally, please do not hesitate to contact Rebecca Brady.