Granting Injunctions against ‘newcomers’.

The Supreme Court’s decision?in?Anglo International Upholland Ltd v Wainwright [2023] 5 WLUK 613?confirmed the court’s power to grant injunctions against so-called ‘newcomers’.

How did this decision arise?

There were conflicting Court of Appeal decisions in?Wolverhampton City Council and others v London Gypsies and Travellers and others?(cited as?Barking and Dagenham LBC v Persons Unknown?[2022 EWCA Civ 13)?and?Canada Goose UK Retail Ltd v Persons Unknown?[2020] EWCA Civ 303?about whether newcomer injunctions could be final.?

In?Wolverhampton,?the Court of Appeal had decided that final injunctions against newcomers were permissible in law but, unhelpfully, in?Canada Goose, it?decided that they weren’t.?

Many of the facts that fell for consideration in?Upholland?had been addressed by the Supreme Court in?Wolverhampton. The Supreme Court analysed the relevant case law and set out a useful framework for how applications for injunctions against newcomers should proceed going forward.

What is a newcomer?

A newcomer is a party who is unknown at the time of issuing an application for an injunction and are “…truly unknowable at the time of the grant…” This is notably different to persons unknown, who are persons that aren’t known by name, but instead they are known as part of a group or as an individual defined by their acts, or location.

A new type of injunction?

The Supreme Court stated that?“…injunctions against newcomers are in substance always a type of without notice injunction, whether in form interim or final…Viewed in that way they then need to be set against the established categories of injunction to see whether they fall into an existing legitimate class, or, if not, whether they display features by reference to which they may be regarded as a legitimate extension of the court’s practice.”

The Supreme Court then decided that the newcomer injunction was?“in no doubt… a wholly new type of injunction with no very closely related ancestor from which it might be described as evolutionary offspring, although analogies can be drawn .... It is in some respects just as novel as were the new types of injunction listed in sub-paragraph (viii) above, and it does not even share their family likeness of being developed to protect the integrity and effectiveness of some related process of the court…it is not even that closely related to the established quia timet injunction, which depends upon proof that a named defendant has threatened to invade the claimant’s rights…Faced with the development by the lower courts of what really is in substance a new type of injunction, and with disagreement among them about whether there is any jurisdiction or principled basis for granting it, it behoves this court to go back to first principles about the means by which the court navigates such uncharted water.”

So, can injunctions be final against newcomers?

In short, yes. Newcomer injunctions able to be interim or final, though it remains to be seen whether the Supreme Court’s conclusion that newcomer injunctions in the travellers’ context ought to come to an end?“by effluxion of time in all cases after no more than a year…”?is applied in other cases involving this type of injunction.

Applicants for newcomer injunctions should therefore be alive to this issue when preparing the application and be prepared to justify the limits sought within them.

Practical guidance on newcomer injunctions

Whilst the Supreme Court identified newcomer injunctions as novel, the practical application doesn’t differ greatly from the steps taken when applying for injunctions against persons unknown. However, the main practical steps are highlighted below:

1. The court will be guided by principles of justice and equity when deciding whether to grant the injunction.
2. The applicant must satisfy the court with detailed evidence that there’s compelling justification for the order sought.
3. There must be evidence of a strong possibility of trespass and the threat must be real and imminent.
4. The actual or intended respondents to the application must be defined as precisely as possible. Even in the case of newcomers, the possibility of identifying them as a class by reference to prior conduct and/or intention, should be explored and adopted if possible.?
5. The injunction should spell out clearly and in everyday terms the full extent of the acts it prohibits but should stop short of using terms like “trespass” and “nuisance” and should instead use non-technical terms.
6. The order shouldn’t extend beyond that which is necessary to achieve the purpose for which it is granted.
7. Full and frank disclosure must be given in order to establish why it is just and convenient for the order to be granted.
8. The applicant should be prepared to satisfy the court that there’s no other more proportionate way to protect the rights in question.
9. Applicants should give careful thought to the limits of location and time to any order sought.
10. Injunctions of this kind should be reviewed periodically, and should not ordinarily exceed one year.
11. Applicants must take reasonable steps to bring the application to the attention of the proposed defendants in advance, such as notices pinned to fences, posts etc.
12. Applicant should make all reasonable attempts to communicate the granted order to the affected party(ies).

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Examples in which a newcomer injunction may be an appropriate remedy for an RSL

There are a number of scenarios whereby a newcomer injunction may be the appropriate remedy for RSL’s through either applying for an ASB injunction or an injunction based on nuisance.

Should a person that is “truly unknowable” (at the time that the injunction is sought) be causing a nuisance on land owned by an RSL, for example, by protesting in relation to a development (or lack thereof) then a newcomer injunction may be an appropriate remedy. This would also be the case should there be unlawful encampments or moving onto green spaces or car parks owned by RSLs, which is similar in scenario to that of Wolverhampton and Upholland. RSLs may also look to issue a newcomer injunction against any unidentifiable persons causing nuisance in communal areas.

The scenarios aforementioned should fall within the scope of any ASB/nuisance policies that an RSL would have in place.

Conclusion

As stated in the quote above, newcomer injunctions are a new type of order that don’t fall into the category of any other types of injunction order. Subject to the guidance laid out by the Supreme Court being followed, RSLs should be encouraged that this type of order can be added into the arsenal of orders able to be sought against persons threatening imminent trespass onto their land, even if their identity isn’t immediately known.