Barking and Dagenham London Borough Council v Persons Unknown [2022]
The Court of Appeal has analysed the case law relating to the grant of final injunctions against persons who were unknown and unidentified, and who might in the future set up unauthorised encampments on land.
Background
The Court was asked to consider issues in relation to wide injunctions granted to local authorities against "Persons Unknown", barring unauthorised occupation or use of land. Many local authorities which had been granted an injunction sought to extend or renew them. A hearing in relation to one such local authority identified a number of issues that were likely to arise in other cases.
The Judge had highlighted concerns that the Canada Goose case had established that final injunctions against persons unknown did not bind newcomers, which created issues that were likely to arise in other cases. He decided that whilst interim injunctions could be made against persons unknown, final injunctions could only be made against parties who had been identified and had an opportunity to contest the final order sought. He therefore discharged the final injunctions granted against persons unknown.
Appeal
Fifteen local authorities appealed against the discharge of final injunctions preventing persons who were unknown and unidentified from occupying and trespassing on local authority land. The appellants argued that, even if the court had properly interpreted Canada Goose, its decision on that point was not part of its essential reasoning, and was distinguishable on the basis that it applied only to so-called protester injunctions.
In allowing the Appeal, the Court of Appeal held that:
- There was no difference between the grant of an interim and a final injunction, and the judge went too far in stating that final relief could never be granted against unidentified persons who were unknown at trial.
- Injunctions could validly be granted against newcomers.
- In explaining the consequences of his decision, the judge had provided guidance which required reconsideration. There were safeguards applicable to injunctions sought against persons unknown in unauthorised encampment cases, but those safeguards were not based on the artificial distinction the judge had drawn between interim and final injunctions. There was no rule that interim injunctions could only be granted for a particular period of time.
- Whilst the procedure adopted by the judge, namely to call in final orders for revision, was unusual, no actual harm had been done. The orders provided for review or permission to apply and the process had resulted in clarification of the applicable law.
- Whilst it was the court's proper function to give procedural guidelines, the court could not and should not limit in advance the types of injunction that might in future cases be held appropriate to make against the world.
In short, the Court of Appeal has clarified that (in appropriate circumstances) a final injunction can be obtained against persons unknown which will be binding on newcomers.