London Borough of Barking and Dagenham v Persons Unknown

JurisdictionEngland & Wales
JudgeLord Justice Lewison,Lady Justice Elisabeth Laing,Sir Geoffrey Vos
Judgment Date13 January 2022
Neutral Citation[2022] EWCA Civ 13
Docket NumberAppeal Nos. See Appendix 1 to [2021] EWHC 1201 (QB)
Year2022
CourtCourt of Appeal (Civil Division)
Between:
(1) London Borough of Barking and Dagenham
(2) Other Local Authorities (listed in Appendix 1 at [2021] EWHC 1201 (QB))
Claimants/Appellants
and
(1) Persons Unknown
(2) Other named Defendants (listed in Appendix 1 at [2021] EWHC 1201 (QB))
Defendants/Respondents

and

(1) London Gypsies and Travellers
(2) Friends, Families and Travellers
(3) Derbyshire Gypsy Liaison Group
(4) High Speed Two (HS2) Limited
(5) Basildon Borough Council
Interveners

[2022] EWCA Civ 13

Before:

Sir Geoffrey Vos, MASTER OF THE ROLLS

Lord Justice Lewison

and

Lady Justice Elisabeth Laing

Appeal Nos. See Appendix 1 to [2021] EWHC 1201 (QB)

Case Nos: See Appendix 1 to [2021] EWHC 1201 (QB)

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mr Justice Nicklin

[2021] EWHC 1201 (QB)

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 1 st, 6 th, 11 th, 16 th, 26 th, 28 th, 33 rd and 34 th claimants (London Borough of Barking and Dagenham, London Borough of Havering, London Borough of Redbridge, Basingstoke and Deane Borough Council and Hampshire County Council, Nuneaton and Bedworth Borough Council and Warwickshire County Council, Rochdale Metropolitan Borough Council, Test Valley Borough Council, and Thurrock Council)

Ranjit Bhose QC and Steven Woolf (instructed by South London Legal Partnership) for the 7 th and 12 th claimants (London Borough of Hillingdon, and London Borough of Richmond-Upon-Thames)

Nigel Giffin QC and Simon Birks (instructed by Walsall Metropolitan Borough Council Legal Services) for the 35 th claimant (Walsall Metropolitan Borough Council)

Mark Anderson QC and Michelle Caney (instructed by Wolverhampton City Council Legal Services) for the 36 th claimant (Wolverhampton County Council)

Marc Willers QC, Tessa Buchanan and Owen Greenhall (instructed by Community Law Partnership) for the first three interveners (London Gypsies and Travellers, Friends, Families and Travellers, and Derbyshire Gypsy Liaison Group)

Richard Kimblin QC (instructed by Eversheds Sutherland (International) LLP) for the 4 th intervener (HS2)

Wayne Beglan (instructed by Basildon Borough Council Legal Services) for the 5 th intervener (Basildon Borough Council) (making written submissions only)

Tristan Jones (instructed by the Attorney General) as Advocate to the Court

Hearing dates: 30 November and 1 and 2 December 2021

Sir Geoffrey Vos, Master of the Rolls:

Introduction

1

This case arises in the context of a number of cases in which local authorities have sought interim and sometimes then final injunctions against unidentified and unknown persons who may in the future set up unauthorised encampments on local authority land. These persons have been collectively described in submissions as “newcomers”. Mr Marc Willers QC, leading counsel for the first three interveners, explained that the persons concerned fall mainly into three categories, who would describe themselves as Romani Gypsies, Irish Travellers and New Travellers.

2

The central question in this appeal is whether the judge was right to hold that the court cannot grant final injunctions that prevent persons, who are unknown and unidentified at the date of the order (i.e. newcomers), from occupying and trespassing on local authority land. The judge, Mr Justice Nicklin, held that this was the effect of a series of decisions, particularly this court's decision in Canada Goose UK Retail Ltd. v. Persons Unknown and another [2020] EWCA Civ 202, [2020] 1 WLR 2802 ( Canada Goose) and the Supreme Court's decision in Cameron v. Liverpool Victoria Insurance Co Ltd (Motor Insurers' Bureau Intervening) [2019] UKSC 6, [2019] 1 WLR 1471 ( Cameron). The judge said that, whilst interim injunctions could be made against persons unknown, final injunctions could only be made against parties who had been identified and had had an opportunity to contest the final order sought.

3

The 15 local authorities that are parties to the appeals before the court contend that the judge was wrong, 1 and that, even if that is what the Court of Appeal said in Canada Goose, its decision on that point was not part of its essential reasoning, distinguishable on the basis that it applied only to so-called protester injunctions, and, in any event, should not be followed because (a) it was based on a misunderstanding of the essential decision in Cameron, and (b) was decided without proper regard to three earlier Court of Appeal decisions in South Cambridgeshire District Council v. Gammell [2006] 1 WLR 658 ( Gammell), Ineos Upstream Ltd v. Persons Unknown and others [2019] EWCA Civ 515, [2019] 4 WLR 100 ( Ineos), and Bromley London Borough Council v Persons Unknown [2020] EWCA Civ 12, [2020] PTSR 1043 ( Bromley).

4

The case also raises a secondary question as to the propriety of the procedure adopted by the judge to bring the proceedings in their current form before the court. In effect, the judge made a series of orders of the court's own motion requiring the parties to these proceedings to make submissions aimed at allowing the court to reach a decision as to whether the interim and final orders that had been granted in these cases could or should stand. Counsel for one group of local authorities, Ms Caroline Bolton, submitted that it was not open to the court to call in final orders made in the past for reconsideration in the way that the judge did.

5

In addition, there are subsidiary questions as to whether (a) the statutory jurisdiction to make orders against persons unknown under section 187B of the Town and Country Planning Act 1990 (section 187B) to restrain an actual or apprehended breach of

planning control validates the orders made, and (b) the court may in any circumstances like those in the present case make final orders against all the world
6

I shall first set out the essential factual and procedural background to these claims, then summarise the main authorities that preceded the judge's decision, before identifying the judge's main reasoning, and finally dealing with the issues I have identified.

7

I have concluded that: (i) the judge 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, from occupying and trespassing on land, and (ii) the procedure adopted by the judge was unorthodox. It was unusual insofar as it sought to call in final orders of the court for revision in the light of subsequent legal developments, but has nonetheless enabled a comprehensive review of the law applicable in an important field. Since most of the orders provided for review and nobody objected to the process at the time, there is now no need for further action. (iii) Section 37 of the Senior Courts Act 1981 (section 37) and section 187B impose the same procedural limitations on applications for injunctions of this kind. (iv) Whilst it is the court's proper function to give procedural guidelines, the court cannot and should not limit in advance the types of injunction that may in future cases be held appropriate to make under section 37 against the world.

8

This area of law and practice has been bedevilled by the use of Latin tags. That usage is particularly inappropriate in an area where it is important that members of the public can understand the courts' decisions. I have tried to exclude Latin from this judgment, and would urge other courts to use plain language in its place.

The essential factual and procedural background

9

There were 5 groups of local authorities before the court, although the details are not material. The first group was led by Walsall Metropolitan Borough Council (Walsall), represented by Mr Nigel Giffin QC. The second group was led by Wolverhampton City Council (Wolverhampton), represented by Mr Mark Anderson QC. The third group was led by the London Borough of Hillingdon (Hillingdon), represented by Mr Ranjit Bhose QC. The fourth and fifth groups were led respectively by the London Borough of Barking and Dagenham (Barking) and the London Borough of Havering (Havering), represented by Ms Caroline Bolton. The cases in the groups led by Walsall, Wolverhampton, and Barking related to final injunctions, and those led by Hillingdon and Havering related to interim injunctions.

10

The injunctions granted in each of the cases were in various forms broadly described in the detailed Appendix 1 to the judge's judgment. Some of the final injunctions provided for review of the orders to be made by the court either annually or at other stages. Most, if not all, of the injunctions allowed permission for anyone affected by the order, including persons unknown, to apply to vary or discharge them.

11

It is important to note at the outset that these claims were all started under the procedure laid down by CPR Part 8, which is appropriate where the claimant seeks the court's decision on a question which is unlikely to involve a substantial dispute of fact ( CPR 8.1(2)(a)). Whilst CPR 8.2A(1) contemplates a practice direction setting out circumstances in which a claim form may be issued under Part 8 without naming a defendant, no such practice direction has been made (see Cameron at [9]). Moreover, CPR 8.9 makes clear that, where the Part 8 procedure is followed, the defendant is not required to file a defence, so that several other familiar provisions of the CPR do not apply and any time limit preventing parties taking a step before defence also does not apply. A default judgment cannot...

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