London Borough of Barking and Dagenham v Persons Unknown

Hearing dates: 27–28 January 2021

Approved Judgment

This judgment is divided into the following sections:

A: Introduction

In cases before the Court, injunctions have been granted to local authorities that have targeted, principally, unauthorised encampments on land. Although some have named individual defendants, most injunctions have been granted against “Persons Unknown” with varying descriptions.

The background to the claims brought by the local authorities and the scope of the injunctions that had been granted was described by Coulson LJ in Bromley London Borough Council v Persons Unknown [2020] EWCA Civ 12; [2020] PTSR 1043 (“ LB Bromley”).

[1] This is an appeal against the refusal by the High Court to grant what the judge called “a de facto borough-wide prohibition of encampment and upon entry/occupation … in relation to all accessible public spaces in Bromley except cemeteries and highways”. Although the stated target of the injunction was “persons unknown”, it was common ground that the injunction was aimed squarely at the gipsy and traveller community. The points arising from the appeal itself are of relatively narrow compass, but all parties were anxious that, in the light of the recent spate of similar cases, this court should provide some guidance as to how local authorities might address this issue in future.

[2] Numerous similar injunctions have been granted by the High Court in recent years and months. We refer to a number of those judgments below. One common feature of those cases was that the gipsy and traveller community was not represented before the court at either the interim or final hearing. Although that did not stop the judges concerned looking very carefully at the orders which they were being asked to make, I do not doubt that, in an adversarial system, there can be no substitute for reasoned submissions from those against whom an injunction is directed.

[3] This, therefore, was the first case involving an injunction in which the gipsy and traveller community were represented before the High Court. As a result of their success in discharging the interim injunction, it is also the first such case to be argued out at appellate level…”

In [4] to [14], Coulson LJ set out the background and history of applications by local authorities and the grant of injunctions against “Persons Unknown” prohibiting unauthorised occupation or use of land (“Traveller Injunctions”). Often, although not exclusively, such injunctions were granted in respect of all public spaces within the relevant local authority area. The Court of Appeal noted a “ long-standing and serious shortage” of sites for Gypsies and Travellers which threatened their traditional nomadic lifestyle that was part of the Gypsy and Traveller tradition and culture. At the date of the Court of Appeal's decision, there were no transit sites to cater for the needs of the Gypsy and Traveller community in the London Borough of Bromley, or anywhere else in Greater London. The nearest site was a transit site at South Mimms in Hertfordshire. This lack of adequate resource led to increasing incidents of unauthorised occupation and use of land. Coulson LJ noted that there was a reasonably direct correlation between the lack of adequate transit sites and unauthorised occupation and use of land. In 2015, one local authority – Harlow DC (see further [102]–[104] below) – sought and obtained a borough-wide injunction to prevent this unauthorised use and occupation of land. The perceived success of this injunction led to a surge in applications for Traveller Injunctions by other local authorities. Coulson LJ explained:

[10] In the South East, the recent spate of wide-ranging injunctions has been aimed at the gipsy and traveller community. This process began in 2015 with Harlow District Council v Stokes [2015] EWHC 953 (QB). The prohibition on encampments in that borough, and the subsequent perception that the injunction had been effective, led to a large number of similar injunctions in 2017–2019. Most of these injunctions, such as the injunction granted in the recent case of Kingston upon Thames London Borough Council v Persons Unknown [2019] EWHC 1903 (QB), as well as the interim injunction granted in this case, did not identify any named defendants. The second and fourth interveners in this case all obtained similar injunctions following what were uncontested hearings.

[11] It appears that, in total, there are now 38 of these injunctions in place nationwide. It would be unrealistic to think that their widespread use has not led to something of a feeding frenzy in this contentious area of local authority responsibility. First, these injunctions have had the effect of forcing the gipsy and traveller community out of those boroughs which have obtained injunctions, thereby imposing a greater strain on the resources of those boroughs or councils which have not yet applied for such an order. Secondly, they have created an understandable concern amongst those local authorities who have not yet obtained such injunctions to seek them forthwith.

The history of these Traveller Injunctions shows how they have developed. They started out targeting actual trespass on land by named individuals. Typically, the local authority would name, as defendants to the proceedings, those who could be identified, and would additionally seek relief against “Persons Unknown”, being those who were alleged also to be unlawfully occupying land but whose identity was not known. Before long, however, most local authorities started to take a different approach. Claims were not brought against named individuals. Instead, they were brought simply against “Persons Unknown”, using a variety of...