Wolverhampton, Wanderers and Newcomers: the Supreme Court decision in Wolverhampton City Council

05/12/2023

Is it wrong in principle to grant an injunction that will bind persons who are a) unknown, b) not parties to the claim, and c) not yet in breach? These are known as ‘newcomer’ injunctions, and this was the question at the core of Wolverhampton City Council. The Supreme Court gave judgment on 29 November 2023.

Injunctions against persons unknown before Wolverhampton City Council

Newcomer injunctions have been sought in increasing number since Bloomsbury, a case involving the theft of an unpublished Harry Potter novel, in which the court held that both identified and unidentified thieves of the novel could be restrained from breaching Bloomsbury’s copyright. Bloomsbury has since been invoked and extended in different contexts including unlawful activity on social media; torts committed by protesters, demonstrators, and paparazzi; and abuse of the internet.

Gammell considered newcomer injunctions in the context of unlawful encampments of Gypsies and Travellers. The Court of Appeal held that newcomers such as Ms Gammell, who stationed her caravan on a site in breach of an existing injunction, become a party to the proceedings at the point of breach.

Wolverhampton City Council at first instance and in the Court of Appeal

Wolverhampton City Council itself concerned a number of injunctions granted in favour of local authorities against ‘persons unknown’, prohibiting unauthorised encampments within the administrative areas of those authorities.

At first instance Nicklin J, applying Canada Goose, held that interim injunctions could be granted against persons unknown, but final injunctions could only be granted against identified parties. The court also held there was a need to review newcomer injunctions, given that local authorities sought them in increasing numbers. As such, the case proceeded to the appellate courts.

The Court of Appeal reversed Nicklin J’s decision and held final injunctions could be granted against persons unknown, based on the reasoning in Gammell – a final injunction can be made against persons unknown with reference to a specific proscribed behaviour, a person becoming a party when they breach the injunction.

The Supreme Court Decision – a ‘wholly new type of injunction’

The Supreme Court affirmed that newcomer injunctions are available as remedies but criticised Gammell – the court grants injunctions ‘on the assumption that they will generally be obeyed, not as stage one in a process intended to lead to committal for contempt’. There is a logical paradox in accepting that a person only becomes bound by an injunction once they are already in breach.

The question of when persons become parties arises when treating newcomer injunctions as conventional injunctions, to which ordinary requirements of service apply; if individuals become parties at the point of breach, they need to be enjoined and served at that point. The Supreme Court instead regards newcomer injunctions as a ‘wholly new type of injunction’. Whilst the persons enjoined should be described as precisely as possible by way of reference to the prohibited behaviour, newcomer injunctions potentially embrace the whole of humanity. Anyone who knowingly breaches them is therefore liable to be held in contempt, whether or not they have been served.

The Supreme Court rejected the distinction drawn in Canada Goose (and relied upon at first instance) between interim and final remedies.  Whether made on an interim or final basis, the important point is that ‘injunctions against newcomers are in substance always a type of without notice injunction’. Treating them as a without notice injunction is therefore the correct starting point in considering whether they should be made at all and, if so, which safeguards apply.

What does this mean for newcomer injunctions sought to prevent unauthorised encampments?

Wolverhampton City Council confirms that newcomer injunctions can be granted, and as such might offer a solution for local authorities dealing with unauthorised encampments. That is not to say they will always be available and, as with all without notice injunctions, applicants must take steps to guard against the risk of injustice.

The Supreme Court highlighted key considerations, which offer useful guidance as to the questions a local authority should consider:

1. Is there a compelling justification for the injunction? I.e., has the local authority:

a) complied with any obligations to properly consider and provide lawful stopping places for Gypsies and Travellers?

b) exhausted all reasonable alternatives? E.g., engaged in dialogue with Gypsy and Traveller communities?

c) taken appropriate steps to control or prohibit unauthorised encampments using other measures and powers?

2. Is there clear evidence that a tort or breach of planning control is highly likely to occur?

3. Are the actual or intended respondents, and prohibited acts, defined as precisely as possible?

4. Does the injunction contain strict geographical and temporal limits?

5. Has the local authority taken reasonable steps, before the application is made, to bring it to the attention of those likely to be affected?

6. How does the local authority propose to give effective notice of any order?

7. Has the local authority included ‘generous liberty’ for anyone affected by the terms of the injunction to apply to vary or discharge the order?

There are some questions the Supreme Court left open, including whether the court has jurisdiction to make a protective or costs capping order, but the above guidance offers a useful starting point for any local authority considering an application.

What does this mean for other types of newcomer injunction, including protest cases?

Direct action undertaken by environmental groups and other recent protests have re-ignited discussion on the balance of the rights of protesters against those of the state and wider society. This was not the focus of Wolverhampton City Council and the Supreme Court warned that ‘nothing we have said should be taken as prescriptive’ regarding injunctive relief in such cases.

The Supreme Court did, however, state that direct protest action might justify the grant of a newcomer injunction. Any court considering this will need to ask whether there is a compelling need on the facts of the given case, with particular consideration to the fact a newcomer injunction is always without notice and so may require additional safeguards. As of yet, however, there are no specific guidelines to be used in relation to protest cases.

Jessica Sharratt, Pupil Barrister

Cases Cited

‘Bloomsbury’: Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch); [2003] 1 WLR 1633.

‘Canada Goose’: Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] 1 WLR 2802.

‘Gammell’: South Cambridgeshire District Council v Gammell; Bromley London Borough Council v Maughan [2005] EWCA Civ 1429; [2006] 1 WLR 658.

‘Wolverhampton City Council’: Wolverhampton City Council and others (Respondents) v London Gypsies and Travellers and others (Appellants) [2023] UKSC 47.