The English and Welsh High Court has ruled that injunctions against “persons unknown” prohibiting unauthorised occupation or use of land (so-called “Traveller Injunctions”) cannot include “newcomers” i.e. parties who might access the land in the future.
London Borough of Barking and Dagenham and others v Persons Unknown and others (London Gypsies and Travellers, Friends, Families and Travellers, and National Federation of Gypsy Liaison Groups intervening) [2021] EWHC 1201 (QB) was a case that involved 38 local authorities as well as groups representing Travellers and Gypsies, and dealt with what was termed the “inescapable tension between the Article 8 rights of the Gypsy and Traveller community and the common law of trespass.”
The Court referred to a previous judgment of Coulson LJ in LB Bromley v Persons Unknown, where the Court of Appeal discussed “persons unknown” injunctions, terming them “exceptional measures”. Such injunctions had often been made without any representation from the Gypsy / Traveller community and were often granted to cover all public space within the relevant local authority area. The Court noted that given the lack of transit sites available to meet the needs of the Gypsy and Traveller community, these injunctions would not only force them out of these boroughs but would impose a “greater strain on the resources of those boroughs or councils which (had) not yet applied for such an order.”
Coulson LJ in that judgment 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”. In referring to this judgment, Nicklin J in the High Court stated that “as the Article 8 rights of Gypsies and Travellers are engaged by Traveller Injunctions, the court must carefully consider the necessity for any order and the proportionality of the terms of the injunction that is sought by the local authority.”
In the present case the local authorities argued that, in order to be effective, the injunctions had to bind newcomers; further, it was contended that under various statutory provisions local authorities could acting in the public interest or for the public good, obtain injunctions binding newcomers. It was submitted that contra mundum orders should be granted by the court in order to restrain threatened trespass or breaches of planning control.
Nicklin J rejected these arguments, stating that without being able to identify who might cause the damage it would be difficult to satisfy the requirement of likely “irreparable harm” needed to grant a quia timet injunction. Further, he termed contra mundum orders an “exceptional category”. Giving the hypothetical example of a family pitching a caravan overnight, he stated that in this situation a local authority could apply for an injunction against the family to require them to vacate the site, whereupon a court could then “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 for them, evidence of any previous anti-social behaviour and so on. Were a contra mundum injunction to already be in place, the Court would have “pre-judged their circumstances...prohibiting them from pitching up even for a single night.”
Nicklin J gave the local authorities a “limited period” to identify any individuals that may have been party to the proceedings under the definition of “persons unknown” and to advise them of this so that they might have the option to challenge any injunction order made against them.
You can read the judgment in full here.