Newcomer Injunctions

The Supreme Court has handed down its Judgement in the case of Wolverhampton City Council and Others v London Gypsies and Travellers and Others, exploring the Courts ability to grant injunctions against persons unknown who are yet to perform, or threaten to perform, the acts which the injunction seeks to prohibit. These ‘persons unknown’ are dubbed ‘Newcomers’ by the Court, and the injunctions against them as “Newcomer Injunctions.”

The appeal raised the question of whether (and if so, on what basis, and subject to what safeguards) the Court has the power to grant an injunction against Newcomers. The appeal itself arose from several conjoined cases which all involved Newcomer Injunctions against encampments of Gypsies and Travellers. However, the appeal was focused on the legal principles underpinning Newcomer Injunctions, as opposed to whether it was appropriate or not for injunctions to be issued in particular circumstances.

Unanimously dismissing the appeal, the Supreme Court held that the Courts do have the power to grant Newcomer Injunctions. However, this power should only be exercised where there is a compelling need to protect civil rights, or to enforce public law. Furthermore, a Newcomer Injunction should only be made subject to procedural safeguards to protect the Newcomers’ rights.

A Newcomer Injunction will, almost always, be granted without prior notice against a person, or persons, who cannot be known at the time of it being granted. This order will, therefore, potentially apply to anyone in the world. This is not entirely novel or without precedent, as in Venables v News Group Newspapers Ltd the Court granted an injunction in contra mundum – which is to say “against everyone else” – which served as a worldwide prohibition on the sharing of information about Jon Venables and still continues to this day.

There are two core elements which set Newcomer Injunctions apart. These are the lack of identifiable party and the lack of cause of action at the time of granting the injunction. Traditionally, the court's jurisdiction has been confined to parties involved in the legal proceedings. However, the evolving nature of litigation and the complexities of modern disputes have led the courts to acknowledge their authority to issue injunctions against individuals, or entities, which are not formally part of the litigation.

Similarly, the concept of granting an injunction, absent a specific cause of action, is a significant aspect of the judgment. The court clarified that, in certain circumstances, it is permissible to seek and obtain an injunction even when no cause of action has been established. This allows the court to intervene proactively and protect the rights of parties before irreparable harm occurs. However, the court cautioned that such orders should be made cautiously and only in exceptional cases where there is a genuine and urgent need for intervention.

The safeguards set out by the Supreme Court will, realistically, ensure that a Newcomer Injunctions are the exception rather than the rule and will only be justified where certain conditions are met:

• There is a compelling need to protect a landowner’s rights and there is no other adequate remedy for this.
• There must be procedural protections for the rights of those affected. The applicant must take “all reasonable steps to draw the application and any order made to the attention of those likely to be affected by it.” This includes identifying and defining the class or category of persons which the injunction will apply to and taking steps to make them aware of the application and injunction (likely through social media or other public advertisement)
• Once the injunction is granted, the order made must be displayed prominently at the location covered by the injunction, with adequate information provided in order to allow those affected to challenge it.
• As an application for a Newcomer Injunction is more likely than not to be one-sided with those impacted unaware of the application even being made the applicant is expected to disclose to the Court, any and all facts or arguments that they are aware of which could be relied upon by a Newcomer to oppose the application. This safeguard continues even after the injunction is granted, and the applicant will be expected to continue to disclose relevant information as they become aware of it, even going so far as to require applying for a new hearing if necessary.
• The injunction must have a clear and limited scope. This requires the injunction to be in clear, plain English (not legalese) and clearly limited in terms of the timing/duration of the injunction and the geographic area it covers. The scope of the injunction must not go further than the minimum necessary and, in all cases, come to an end after no more than a year.
• Finally, it must be “just and convenient” to impose an injunction. This means balancing the applicants’ rights against the rights of those affected, including considering the European Convention of Human Rights.

While the present case was considered and decided under the prism of Gypsies, Travellers, and their encampments, the advent of Newcomer Injunctions can and will have wide reaching impacts across all sectors. The Judgement even has impacts on a procedural level giving guidance on the service of claims where flexibility is required.

A flexible approach to service ensures that legal action can be initiated promptly, even when the identities of the wrongdoers are not initially known. Furthermore, procedural guidance on serving claims on persons unknown is likely to influence cases involving trespass, nuisance, and many other actions affecting land. Additionally, the recognition that an injunction can be granted absent a cause of action also has implications for the legal landscape. This provides a mechanism for parties to proactively seek court intervention to prevent harm before the formal cause of action arises. This may be particularly relevant in situations where the potential harm is imminent, and delaying legal proceedings until a cause of action matures would be impractical or prejudicial.

The Court explicitly acknowledged that Newcomer Injunctions could be imposed on protests/protestors who are engaged in direct action. However, they were also clear that they were not taking a view on the applicability of Newcomer Injunctions in any other case which means that this issue will more than likely work its way back through the Courts in the future.

The acknowledgment of the court's jurisdiction to issue injunctions against non-parties will be particularly significant in commercial litigation, where third parties often play a crucial role in disputes. This decision empowers litigants to seek injunctive relief against individuals or entities that may not be formally involved in the proceedings but are nonetheless instrumental in causing harm or facilitating wrongdoing.