Court approves ‘newcomer injunctions’ against Travellers

The Supreme Court has approved the use of so-called “newcomer injunctions”, a recent legal mechanism used by local authorities to stop Gypsy and Traveller communities from setting up unauthorised encampments on council land. It is a practice that has developed over the past eight years. Councils have found normal eviction proceedings against travelling communities to be ineffective as, by the time proceedings have got underway, the unauthorised encampment has moved on and been replaced by another. Therefore, local authorities have taken to obtaining High Court injunctions against “persons unknown” barring them from camping on local authority land without permission. Between 2015 and 2020, 38 local authorities made use of the mechanism, according to court papers. The mechanism went unchallenged until 2020, when a High Court judge, hearing a request to extend existing injunctions, decided the situation needed to be reviewed. It was ruled that the court orders could only be granted on an interim basis and therefore a series of injunctions were discharged. The ruling was overturned in the Court of Appeal and, in a ruling handed down today (29 November), the Supreme Court agreed, and found that the High Court did indeed have the power to grant newcomers injunctions. “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,” said the judgment, written by Lord Reed, Lord Briggs and Lord Kitchin. “The injunction may be granted on an interim or final basis, necessarily on an application without notice,” they said. Even so, the judges stated that any judge granting such an order must be “guided by the principles of justice and equality”. They set a series of conditions that courts must consider. In particular, local authorities must demonstrate a “compelling need” for the injunction and prove that their needs cannot be met by other remedies. Mathew Ditchburn, partner and head of real estate disputes at Hogan Lovells, said the confirmation given in today’s ruling is of major importance: “This case marks the culmination of many years’ evolution in the use of injunctions to stop trespassers. “Confirmation that you can injunct basically the whole world from doing something that no-one has done, or even threatened to do yet, is potentially a huge deal for property owners trying to protect their land, not only against entry by Travellers, but also by protestors, urban explorers and the like.” Even so, “the Supreme Court has made it clear that these injunctions might be obtainable but the threshold for getting them is actually very high”, he added. To date, newcomer injunctions have also been used by energy companies, according to Emma Pinkerton, a partner at CMS Cameron McKenna Nabarro Olswang. In today’s hearing, she said, the Supreme Court justices took a different tack from the lower court judges. “The court looked at this from a different perspective to previous decisions, considering the equitable jurisdiction to grant injunctions and making clear that equity will look at substance rather than form and should not be constrained by any rule or principle,” she said. “However, it made it equally clear that this equitable jurisdiction should only be used where there is a compelling need to protect civil rights or to enforce public law, and then only where there is no other available remedy.” Wolverhampton City Council and others (respondents) v London Gypsies and Travellers and others (appellants) Supreme Court (Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Briggs, Lord Kitchin) 29 November 2023