On The Case ' Court Of Appeal Rules On Traveller Injunctions ' Back To Square One

• Published date: 18 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: BLM
• Author: Ms Priya Sejpal

In London Borough of Barking and Dagenham & Anor v Persons Unknown & Ors 2022; the net has been spread wider with a ruling that final injunctions could be made against persons unknown.

The overarching effect of this Court of Appeal ruling means that the Council's final injunction against named defendants, and persons unknown, is now in full force.

Background

As reported in my previous article for ALARM, on 12 May 2021, Mr Justice Nicklin handed down a judgment which confirmed that final injunctions would only bind parties to the proceedings as at the time of the litigation and that it would not capture 'newcomers'.

As a result, many of the injunctions (38) that had been raised by different council bodies had been called in, meaning they were either withdrawn, dismissed or discharged; few were left alone. However, in a turn of events, on 13 January 2022 the Court of Appeal (unanimously) overturned this decision following a challenge from the Council and 11 other councils.

The master of the rolls, Sir Geoffrey Vos, said the High Court was 'wrong to hold that the Court cannot grant final injunctions that prevent persons, who are unknown and unidentified at the date of the order (newcomers), from occupying and trespassing on council land'.

The judgment

The Court of Appeal held dissenting views. One was that while procedural guidelines can be given, the courts do have the power to bind non-parties to proceedings pursuant to Section 37 of the Senior Courts Act 1981. While this is wide-reaching in nature, limiting the extent of this power would have the adverse effect of tying up courts in more litigation in the future, the destiny of such cases which cannot be predicted today.

Other considerations helped to shift the pendulum. There is no real distinction between an interim and final injunction in the context of injunctive relief against persons unknown. This means newcomers who knowingly violate the terms of an injunction (whether interim or final) automatically become a party to the litigation by the very act of violation.

Lessons to be learnt

While many may argue that we have gone round the houses, we have nonetheless now achieved a comprehensive review of the law applicable in such an important area; silver linings.

Yes, this decision restores the law back to its original position. More importantly, however, it puts jurisdiction back into the councils' domain. Mr Darren Rodwell of London Borough of Barking and Dagenham Council said: "finally common sense...