London Borough of Barking and Dagenham v Persons Unknown

JurisdictionEngland & Wales
JudgeMr Justice Nicklin
Judgment Date12 May 2021
Neutral Citation[2021] EWHC 1201 (QB)
CourtQueen's Bench Division
Docket NumberCase Nos: See Appendix 1
Date12 May 2021
Between:
(1) London Borough of Barking and Dagenham
(2) Other Local Authorities (see Appendix 1)
Claimants
and
(1) Persons Unknown
(2) Other named Defendants (see Appendix 1)
Defendants

and

(1) London Gypsies and Travellers
(2) Friends, Families and Travellers
(3) National Federation of Gypsy Liaison Groups
Interveners

[2021] EWHC 1201 (QB)

Before:

THE HONOURABLE Mr Justice Nicklin

Case Nos: See Appendix 1

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Caroline Bolton and Natalie Pratt (instructed by Sharpe Pritchard LLP and LB Barking & Dagenham Legal Services) for the 1st, 6th, 11th, 16th, 26th, 28th, 33rd and 34th Claimants

Ranjt Bhose QC and Steven Woolf (instructed by South London Legal Partnership) for the 7th and 12th Claimants

Steven Woolf (instructed by LB Ealing Legal Services and Reigate & Banstead BC) for the 4th and 27th Claimants

Ranjt Bhose QC and Sarah Salmon (instructed by HB Public Law) for the 8th Claimant

Nigel Giffin QC and Simon Birks (instructed by Walsall MBC Legal Services) for the 35th Claimant

Mark Anderson QC and Michelle Caney (instructed by Wolverhampton CC Legal Services) for the 36th Claimant

Marc Willers QC, Tessa Buchanan and Owen Greenhall (instructed by Community Law Partnership) for the Interveners

Sarah Wilkinson (instructed by Attorney General) as Advocate to the Court

Hearing dates: 27–28 January 2021

Approved Judgment

Mr Justice Nicklin The Honourable
1

This judgment is divided into the following sections:

A: Introduction

Section

Paragraphs

A.

Introduction

[2] – [7]

B.

The changing legal landscape

[8] – [25]

(1)

Cameron v London Victoria Insurance Co Ltd

[10] – [11]

(2)

LB Bromley v Persons Unknown

[12] – [19]

(3)

Canada Goose UK Retail Ltd v Persons Unknown

[20] – [25]

C.

The Cohort Claims

[26] – [113]

(1)

Assembling the Cohort Claims and their features

[26] – [30]

(2)

Service of the Claim Form on “Persons Unknown”

[31] – [48]

(3)

Description of “Persons Unknown” in the Claim Form and CPR 8.2A

[49] – [52]

(4)

The bases of the civil claims

[53] – [78]

(a) s.222 Local Government Act 1972

[55] – [60]

(b) s.187B Town & Country Planning Act 1990

[61] – [63]

(c) s.1 Anti-social Behaviour, Crime and Policing Act 2014

[64] – [70]

(d) s.130 Highways Act 1980

[71] – [73]

(e) ss.61 and 77–79 Criminal Justice and Public Order Act 1994

[74] – [77]

(f) Trespass

[78]

(5)

Powers of Arrest attached to injunction orders

[79] – [82]

(6)

Use of the Interim Applications Court of the Queen's Bench Division

[83] – [85]

(7)

Failure to progress claims after the grant of an interim injunction

[86] – [101]

(8)

Particular Cohort Claims:

[102] – [111]

(a) Harlow District Council & Essex County Council

[102] – [104]

(b) London Borough of Enfield

[105] – [107]

(c) Canterbury City Council

[108] – [111]

(9)

Case Management Hearing: 17 December 2020 – Identification of issues of principle to be determined

[112] – [113]

D.

An overview and summary of conclusions

[114] – [126]

E.

Issue 1: Jurisdiction over Final Orders

[127] – [148]

(1)

Submissions

[127] – [134]

(2)

Decision

[135] – [148]

F.

Issue 2: Final orders against Newcomers and contra mundum orders

[149] – [238]

(1)

Do injunctions in the Cohort Claims bind newcomers?

[150] – [186]

(a) Submissions

[151] – [160]

(b) Decision

[161] – [186]

(2)

Can the Court grant a Traveller Injunction contra mundum?

[190] – [237]

(a) The injunction granted to Wolverhampton CC

[191] – [207]

(b) Submissions

[208] – [223]

(c) Decision

[224] – [238]

G.

Issue 3: Ascertaining the parties to the Final Order

[239] – [241]

(1)

Submissions

[239]

(2)

Decision

[240] – [241]

H.

Issue 4: The ‘conundrum’ of interim relief

[242] – [243]

J.

Consequences and Next steps

[244] – [248]

2

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.

3

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…”

4

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.

5

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...

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