On the case - Gypsy and traveller injunctions - fighting the frenzy

Tuesday 6 July 2021

London Borough of Barking and Dagenham and Others v Persons Unknown, London Gypsies and Travellers intervening [2021] EWHC 1201 (QB)

On 12 May, Mr Justice Nicklin handed down judgment in which traveller injunctions, and the issue of whether final injunctions against ‘persons unknown’ bind only the parties to the proceedings and not ‘newcomers’.

It also established that councils need to engage fully with the gypsy and traveller community to find a solution that protects their rights.

Background

Historically, courts have always grappled with the tension 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) against the issue of trespass. In the last few years wide-ranging injunctions aimed at the gypsy and traveller community have been described as ‘something of a feeding frenzy’.

In LB Bromley v Persons Unknown, 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 (EIA); produce significant evidence of at least quasi-criminal activity; evidence of the risk to public health; and/or evidence of serious anti-social behaviour. Also councils should have a transit site policy; a negotiated stopping policy; or a policy for tolerating encampments that are not acting in an anti-social manner; before applying for an injunction.

In the LB Bromley v Persons Unknown judgment, Coulson LJ also outlined the need for “positive action on the part of the (local) authority” to try to “understand and respect the gypsy and traveller community’s culture, traditions and practices”.

The judgment

In the recent case of London Borough of Barking and Dagenham and Others v Persons Unknown, London Gypsies and Travellers intervening [2021] EWHC 1201 (QB), the High Court held that the Court cannot grant a final injunction against persons unknown, either against persons who, by the date of the hearing of the final injunction, are not regarded as parties to the proceedings (newcomers) or alternatively, contra mundum (orders which bind the whole world or orders that bind everyone regardless of whether or not they were a party to the proceedings) as the circumstances to do so are very limited and not applicable in this case.

Legal lessons

In judgment of London Borough of Barking and Dagenham and Others v Persons Unknown, London Gypsies and Travellers intervening [2021] EWHC 1201 (QB) Mr Justice Nicklin held that it was fundamental to the English process of civil litigation that the Court cannot grant a final order against someone who is not a party to the claim.

Further, he placed contra mundum orders within an ‘exceptional category’. His view was that it is not for courts to pre-judge circumstances, but to carry out a meaningful parallel analysis of engaged rights, assessing the proportionality of such an injunction when considering the family circumstances, availability of other sites, evidence of any previous anti-social behaviour, and other factors.

Another important take away is that it is for councils to identify anyone in the category of persons unknown at the time the relevant final injunction is granted. The final injunction will bind only those who can be identified as parties to the proceedings and if no parties can be identified, the injunction will bind nobody.

The onus is clearly on councils and  Mr Justice Nicklin set out ten steps to take to actively identify defendants in such cases, by way of practical guidance and help.

Practitioners in this field must also be careful to comply strictly with the Civil Procedure Rules, as it was suspected that some of the cases brought by the councils in this matter were in breach of procedure (specifically, the rules relating to service of claim forms and obtaining valid orders for alternative service on persons unknown).

The future

This decision has come at a crucial time as measures which essentially criminalise encampments are set to be introduced in the Police, Crime, Sentencing and Courts Bill.

The Government’s Police, Crime, Sentencing, and Courts Bill aims to create a new offence, punishable by up to three months in prison, or a fine of up to £2,500, or both, if an individual with a vehicle trespasses, or intends to trespass, on private land and does not leave when asked to do so by the landowner or police. 

With that in mind, representatives of gypsy and traveller communities and campaign groups have argued that to criminalise the act of trespass, without the government providing more designated sites would amount to a potential breach of both the European Convention on Human Rights as well as the Equality Act 2010.

The case of London Borough of Barking and Dagenham and Others recognises the gypsy and traveller community’s enshrined right to travel to pastures new and that the occupation of caravan is an integral part of their ethnic identity (the effect of this decision actually applies to a range of other public and private nuisance cases).

Councils have to provide adequate sites and stopping places for the gypsy and traveller community, with no more blanket bans. However, there is a shortage of legal sites in the UK.

It will be interesting to see how these rights will be balanced against the new proposed government measures, which could harm the gypsy and traveller community’s nomadic way of life. The Bill, which many protestors have called on the Parliament to “Kill the Bill”, has now finished the Committee Stage and will come before Parliament for Report Stage on Monday 5 July 2021.

Priya Sejpal (priya.sejpal@blmlaw.com) is a Property Litigation Associate at BLM.

 

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