What do you get when you put two lawyers in a room? Three opinions.

In the latest in the long running collection of actions relating to borough-wide, traveller, protestor, unauthorised encampments and s187B TCPA injunctions, the Court of Appeal has recently overturned the judgment of Mr Justice Nicklin in the High Court in May last year relating to injunctions against “persons unknown”.

“Persons unknown” are those who are not specifically named on an injunction; it is a catch-all defendant name intended to capture, for instance, those on site who are missed in the initial information gathering or those who arrive on site after the injunction is in place.

We commented on Nicklin J’s judgment and on various other injunction cases last year. In brief, the High Court had ruled that, while interim injunctions could be obtained against persons unknown, final injunctions could not. The High Court ruled that the final injunction was an end to the litigation and that, if someone was not known and identified and served by the time of the final injunction hearing, they could not be bound by an injunction. “Newcomers”, those who came along after the final injunction, did not have an opportunity to put up a defence to the injunction so it would be iniquitous if they could be bound by it, said the High Court.

The Court of Appeal has overturned that and effectively restored the previous position. LPAs can once again get final injunctions against persons unknown. Not just against the class of people known but not identified by name (eg traveller families identified only by photos or description) but also the newcomers (eg those who arrived on a site after the final injunction is issued).

Of course, in s187B situations, to enforce the injunction by committal proceedings it is still necessary to find and identify the newcomer and serve them with the injunction and the committal claim. But at least LPAs now have a chance to injunct them in the first place.

The previous High Court decision (and others in this line of litigation) also laid down some other rules about injunctions. These were generally supported by the Court of Appeal. So it remains the case that councils should continue to move from interim to final injunction without delay, and not leave cases stuck at interim stage forever; remember an interim injunction does not involve a full hearing of the merits of the case. There is still a need to somehow evidence the injunction claim carefully and fully but in a way an illiterate defendant can understand.  The Court of Appeal blessed the concept of a 1 year time limit on all injunctions (or certainly a fixed end point triggering a review). There is still a need to identify and name defendants where possible or, failing that, to do so by category and geography (eg “all people bringing caravans onto the red-lined site”) rather than just attempting to injunct the whole world. And it remains the case that a final injunction against persons unknown should be seen as an exceptional remedy.

The Court of Appeal used “unauthorised encampment” cases as its example subject matter in this decision and it does seem that these were uppermost in its mind. So the lack of trials (final injunctions) in unauthorised encampment cases was cited. As were the various methods of enforcement short of committal. And the lack of Article 8 rights on land not owned by the “unauthorised encamper”. These are not really features of s187B planning enforcement cases. However, in a paragraph or two on s187B injunctions, the court confirmed that there was no reason the decision should not also apply to them. That seems a little glib. 

So where is the third opinion? Well as it happens the High Court was attempting to apply a previous Court of Appeal judgment in Canada Goose v Persons Unknown [2020] EWCA Civ 202. This Court of Appeal, in coming to its current opinion, therefore had somehow to reconcile not just the High Court’s opinion but also the Court of Appeal’s own previous opinion with which it was no longer entirely happy.  Cue some legal squirming on the doctrine of precedent! 



And maybe the Supreme Court will be asked for its opinion…