Further Limits on Injunctions against Persons Unknown

Summary

The recent case of London Borough of Enfield and Persons Unknown and London Gypsies & Travellers [2020] EWHC 2717 (QB) builds upon and highlights the procedural changes brought about by a number of decisions made in 2019 and 2020 (see our earlier comments on these decisions here, here and here). That case law has made it very clear that final injunctions against Persons Unknown will only be appropriate in very limited circumstances, and this recent decision considers the knock on effects that conclusion has in respect of interim injunctions in such cases.

Background

In this case the claimant local authority sought an order from the Court to extend a previous Final Injunction granted against Persons Unknown which had lasted for a three-year period from October 2017. The Final Injunction prevented incursions on various sites across the borough for those seeking to use them for residential purposes (i.e. from members of the travelling community) and fly tipping. Amongst other issues, in seeking the extension the claimant also sought retrospective consent to remedy defects in service of the original proceedings, which it became apparent had never been properly served on any Defendant.

Recognising that it faced difficulties as a result of the defects in service in 2017, the claimant local authority then sought a new interim injunction, against 'Persons unknown who enter and/or occupy any of the locations listed in this order…for the purposes of fly-tipping or discarding waste…’ It also sought orders for alternative service of both the new Claim Form and any injunction.

What the Court held

The Court refused to retrospectively grant alternative service of the original 2017 Claim Form. The Court considered that the steps that had been taken in 2017 to bring the Claim Form to the attention of anyone in the category of ‘Persons Unknown’ were inadequate and the claimant local authority had failed to demonstrate a good reason to authorise service in accordance with those steps. As was made clear in Canada Goose UK Retail Ltd v Persons unknown and PETA [2019] EWHC 2459 (QB) service of the claim to be answered was fundamental to the principles of the judicial system. There is an important distinction between ‘a person’s general awareness of the proceedings, as a result of information they are provided, and the important step of being served with documents that makes the person aware that s/he is a party to the proceedings.’ In this instance that meant that the original claim had not been properly served and therefore no extension of the Final Order could, or should, be made.

Importantly, the Court also considered that there is a duty on a party which has obtained an injunction against Persons Unknown on a ‘without notice’ basis to bring the matter back before the Court if it becomes aware of a material change of circumstances (including a change in the law, such as the decision in Canada Goose) which means there is a real prospect that the Court would amend or discharge the injunction. The Court did not consider that duty was limited only to public authorities.

As regards the new interim injunction sought, the Court considered that there would be no real prospect of serving such an order, because no-one was presently occupying any of the locations or carrying out fly-tipping at them. Consequently, such an order would not provide any real protection to the claimant local authority because it would not be able to be adequately demonstrate whether any individual person had become a party to the claim, in line with the Canada Goose decision and, as soon as the order became final (which the Court considered as a matter of practice would usually happen fairly quickly) then it would be worthless against ‘newcomers’. The only way that the Court considered that difficulty could be addressed was for the claimant local authority to have a ‘rolling programme of applications for interim orders’, which would be entirely impractical. Consequently, the Court also refused to grant the new interim injunction sought, or to allow alternative service of the Claim Form, and continued the matter to allow further arguments in light of the importance of the issues raised, including inviting the Attorney General to appoint an Amicus to make submissions on the effect of Canada Goose in these kinds of circumstances.

The consequences

As a result of this not only should claimants seeking similar remedies from the Court be very mindful about identifying and serving Persons Unknown, but, as the law stands at the moment they should also be aware that there is a clear distinction between the jurisdiction of the Court to grant an interim injunction as opposed to a final injunction where Persons Unknown are involved.

As highlighted in the judgment it is possible to obtain an interim injunction against different categories of Persons Unknown including those who are identifiable but whose names are unknown (such as squatters) as well as those who will or are likely in the future to commit a trespass or other civil wrong (such as protestors) but in light of the concerns raised in this decision it seems increasingly important that the individuals concerned can be described in such a way as to allow their identification, even if they remain anonymous, and can be properly served. However, in either case it is only possible to serve a final order against those who identify themselves within the group of Persons Unknown at that point in time. As a result whilst it may be that an interim injunction will work temporarily to immediately prevent a wrong it is unlikely to bind more than a handful of known and identifiable ‘Persons Unknown’ longer term and then only when they either identify themselves or are identified and are served before a final order is granted.

And, even after such an order has been obtained, it is necessary to consider whether any material changes of circumstances in the facts or the law oblige the claimants to bring the matter back to Court for reconsideration throughout the duration of the order.

Options

The case law over the last couple of years has undoubtedly highlighted the importance of being able to clearly identify those who may fall within the category of ‘Persons Unknown’ and taking real and authorised steps to ensure that both an injunction Order and the underlying Claim are brought to the attention of those individuals who are properly defendants to that action. The consequence of this is that potential claimants will need to take even greater steps to identify and engage with potential defendants in order to protect their land and business interests from unlawful incursion and interruption.

Given the increasing constraints on obtaining and serving interim orders, landowners may wish to monitor any particularly vulnerable sites and where appropriate put a physical presence in place to deter such acts or to provide clear and detailed ‘real time’ information to support a court application if the need arises. In addition, given the delays possible in reacting to such acts it can be useful to have draft documentation prepared and a team identified in advance to deal with these situations.

Whilst the Courts remain willing to assist, especially where there are health and safety or environmental concerns, for the time being the bar to obtaining a preventative injunction is even higher.