Wolverhampton City Council & Ors v London Gypsies and Travellers & Ors [2023] UKSC 47 (29 November 2023)
Citation: Wolverhampton City Council & Ors v London Gypsies and Travellers & Ors [2023] UKSC 47 (29 November 2023)
Rule of thumb: Stare-decisis: Can you get a Court action for nuisance/harassment/trespass against people who you cannot fully identify, such as travellers or online social media trolls? Yes, in the modern world, if an unknown person is causing nuisance/harassment, provided that you have done all you can to try to identify a person, you can still get Court remedies against them.
Background facts: The facts of this case were that the Wolverhampton Council sought to ban gypsies and travellers from occupying certain spaces as they were being a nuisance there. The Council did not know the names of the gypsies and travellers, as they had no ID & other identification documents, so sought to identify them only by their face & have orders enforced against them.
Parties argued: The gypsies argued that they had not been designed properly in the action and so no action could be taken against them.
The Council argued that they had done all they reasonably could to identify the individuals but it was simply virtually impossible to do this, and so the Court must issue remedies against them purely by their face only.
Court held:The Court held that where it is not practicable to identify someone’s full name then they can still have remedies put against them purely from their face only. The Court stated that in modern society there is a balance to be struck between people like gypsies, environmental protestors, and people online who causes nuisance & harassment but cannot be identified, but nonetheless need served with Court papers & remedies to prevent law breaking.
Ratio-decidendi:
‘(1) The problem 1. This appeal concerns a number of conjoined cases in which injunctions were sought by local authorities to prevent unauthorised encampments by Gypsies and Travellers. Since the members of a group of Gypsies or Travellers who might in future camp in a particular place cannot generally be identified in advance, few if any of the defendants to the proceedings were identifiable at the time when the injunctions were sought and granted. Instead, the defendants were described in the claim forms as “persons unknown”, and the injunctions similarly enjoined “persons unknown”. In some cases, there was no further description of the defendants in the claim form, and the court’s order contained no further information about the persons enjoined. In other cases, the defendants were described in the claim form by reference to the conduct which the claimants sought to have prohibited, and the injunctions were addressed to persons who behaved in the manner from which they were ordered to refrain. 2. In these circumstances, the appeal raises the question whether (and if so, on what basis, and subject to what safeguards) the court has the power to grant an injunction which binds persons who are not identifiable at the time when the order is granted, and who have not at that time infringed or threatened to infringe any right or duty which the claimant seeks to enforce, but may do so at a later date: “newcomers”, as they have been described in these proceedings. 3. Although the appeal arises in the context of unlawful encampments by Gypsies and Travellers, the issues raised have a wider significance. The availability of injunctions against newcomers has become an increasingly important issue in many contexts, including industrial picketing, environmental and other protests, breaches of confidence, breaches of intellectual property rights, and a wide variety of unlawful activities related to social media. The issue is liable to arise whenever there is a potential conflict between the maintenance of private or public rights and the future behaviour of individuals who cannot be identified in advance. Recent years have seen a marked increase in the incidence of applications for injunctions of this kind. The advent of the internet, enabling wrongdoers to violate private or public rights behind a veil of anonymity, has also made the availability of injunctions against unidentified persons an increasingly significant question. If injunctions are available only against identifiable individuals, then the anonymity of wrongdoers operating online risks conferring upon them an immunity from the operation of the law. 4. Reflecting the wide significance of the issues in the appeal, the court has heard submissions not only from the appellants, who are bodies representing the interests of Gypsies and Travellers, and the respondents, who are local authorities, but also from interveners with a particular interest in the law relating to protests: Friends of the Earth, Liberty, and (acting jointly) the Secretary of State for Transport and High Speed Two (HS2) Ltd…
(2) The factual and procedural background 6. Between 2015 and 2020, 38 different local authorities or groups of local authorities sought injunctions against unidentified and unknown persons, which in broad terms prohibited unauthorised encampments within their administrative areas or on specified areas of land within those areas…
2. The legal background 14. Before considering the development of “newcomer” injunctions - that is to say, injunctions designed to bind persons who are not identifiable as parties to the proceedings at the time when the injunction is granted…
4. A new type of injunction? 108. It is convenient to begin the analysis by considering certain strands in the arguments which have been put forward in support of the grant of newcomer injunctions, initially outside the context of proceedings against Travellers…
6. Outcome 238. For the reasons given above we would dismiss this appeal. Those reasons differ significantly from those given by the Court of Appeal, but we consider that the orders which they made were correct. There follows a short summary of our conclusions: (i) The court has jurisdiction (in the sense of power) to grant an injunction against ‘newcomers’, that is, persons who at the time of the grant of the injunction are neither defendants nor identifiable, and who are described in the order only as persons unknown. The injunction may be granted on an interim or final basis, necessarily on an application without notice. (ii) Such an injunction (a “newcomer injunction”) will be effective to bind anyone who has notice of it while it remains in force, even though that person had no intention and had made no threat to do the act prohibited at the time when the injunction was granted and was therefore someone against whom, at that time, the applicant had no cause of action. It is inherently an order with effect contra mundum, and is not to be justified on the basis that those who disobey it automatically become defendants. (iii) In deciding whether to grant a newcomer injunction and, if so, upon what terms, the court will be guided by principles of justice and equity and, in particular: (a) that equity provides a remedy where the others available under the law are inadequate to vindicate or protect the rights in issue. (b) That equity looks to the substance rather than to the form. (c) That equity takes an essentially flexible approach to the formulation of a remedy. (d) That equity has not been constrained by hard rules or procedure in fashioning a remedy to suit new circumstances. These principles may be discerned in action in the remarkable development of the injunction as a remedy during the last 50 years. (iv) In deciding whether to grant a newcomer injunction, the application of those principles in the context of trespass and breach of planning control by Travellers will be likely to require an applicant: (a) to demonstrate a compelling need for the protection of civil rights or the enforcement of public law not adequately met by any other remedies (including statutory remedies) available to the applicant. (b) to build into the application and into the order sought procedural protection for the rights (including Convention rights) of the newcomers affected by the order, sufficient to overcome the potential for injustice arising from the fact that, as against newcomers, the application will necessarily be made without notice to them. Those protections are likely to include advertisement of an intended application so as to alert potentially affected Travellers and bodies which may be able to represent their interests at the hearing of the application, full provision for liberty to persons affected to apply to vary or discharge the order without having to show a change of circumstances, together with temporal and geographical limits on the scope of the order so as to ensure that it is proportional to the rights and interests sought to be protected. (c) to comply in full with the disclosure duty which attaches to the making of a without notice application, including bringing to the attention of the court any matter which (after due research) the applicant considers that a newcomer might wish to raise by way of opposition to the making of the order. (d) to show that it is just and convenient in all the circumstances that the order sought should be made. (v) If those considerations are adhered to, there is no reason in principle why newcomer injunctions should not be granted’.
Lord Reed
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.