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Wednesday 16 February 2022
In London Borough of Barking and Dagenham & Anor v Persons Unknown & Ors 2022; the net has been spread wider with a ruling that final injunctions could be made against persons unknown.
The overarching effect of this Court of Appeal ruling means that the Council’s final injunction against named defendants, and persons unknown, is now in full force.
As reported in my previous article for ALARM, on 12 May 2021, Mr Justice Nicklin handed down a judgment which confirmed that final injunctions would only bind parties to the proceedings as at the time of the litigation and that it would not capture ‘newcomers’.
As a result, many of the injunctions (38) that had been raised by different council bodies had been called in, meaning they were either withdrawn, dismissed or discharged; few were left alone. However, in a turn of events, on 13 January 2022 the Court of Appeal (unanimously) overturned this decision following a challenge from the Council and 11 other councils.
The master of the rolls, Sir Geoffrey Vos, said the High Court was ‘wrong to hold that the Court cannot grant final injunctions that prevent persons, who are unknown and unidentified at the date of the order (newcomers), from occupying and trespassing on council land’.
The Court of Appeal held dissenting views. One was that while procedural guidelines can be given, the courts do have the power to bind non-parties to proceedings pursuant to Section 37 of the Senior Courts Act 1981. While this is wide-reaching in nature, limiting the extent of this power would have the adverse effect of tying up courts in more litigation in the future, the destiny of such cases which cannot be predicted today.
Other considerations helped to shift the pendulum. There is no real distinction between an interim and final injunction in the context of injunctive relief against persons unknown. This means newcomers who knowingly violate the terms of an injunction (whether interim or final) automatically become a party to the litigation by the very act of violation.
Lessons to be learnt
While many may argue that we have gone round the houses, we have nonetheless now achieved a comprehensive review of the law applicable in such an important area; silver linings.
Yes, this decision restores the law back to its original position. More importantly, however, it puts jurisdiction back into the councils’ domain. Mr Darren Rodwell of London Borough of Barking and Dagenham Council said: “finally common sense has prevailed, and I am glad that this judgment agrees with our approach that our injunctions are lawful”.
The effect of this decision means that a wider group of people are now protected who would otherwise have had their right to the quiet enjoyment and safety of their land and property interfered with. Mr Rodwell adds: “this means that our residents can continue to enjoy our parks and open spaces without having to worry about any untoward behaviour.”
In London Borough of Bromley v Persons Unknown 2020, the Court of Appeal discussed ‘persons unknown’ injunctions, terming them ‘exceptional measures’. Such borough-wide injunctions had often been made without any representation from the gypsy and traveller community and were often granted without justification.
The Court emphasised the need for councils to prepare an equality impact assessment, produce significant evidence of at least quasi-criminal activity, risk to public health, and/or serious anti-social behaviour, demonstrate that it either has a transit site, a negotiated stopping policy, or, a policy for tolerating encampments that are not acting in an anti-social manner, before applying for an injunction.
During these appeal proceedings, the London Borough of Barking and Dagenham presented voluminous equality impact assessments, each supported with thousands of pages of evidence, ensuring traveller rights were fully considered.
In my previous article, I discussed the long-standing tension that has existed between the Article 8 rights of the gypsy and traveller community (the right to respect one's private and family life including one’s home) and the issue of trespass. This Court of Appeal decision, however, appears to draw a line between these competing rights and it is still incumbent on councils to engage fully with the gypsy and traveller community to find a solution that protects their rights.
The Government has tabled further amendments to the Police, Crime, Sentencing and Courts Bill for Lords Report stage; it will be interesting to see how this piece of legislation will be balanced with the decision in London Borough of Barking and Dagenham & Anor v Persons Unknown & Ors 2022 and the gypsy and traveller community’s nomadic way of life.
Priya Sejpal (firstname.lastname@example.org) is a Property Litigation Associate at BLM.