Injunctions against potential protesters - Estates Gazette Q&A

Senior Associate Samuel Lear and Barrister Yaaser Vanderman of Landmark Chambers apply the reasoning of a recent Supreme Court decision.

Question

We are responsible for the safety of the public highways and we anticipate that protesters are likely to occupy a gantry on top of the road for protesting purposes.

We have particular concerns for the safety of those protesting as well as other road users. We are unable to identify the protesters and, to date, there have been no protests on that particular gantry.

Given our concerns, would we be able to obtain an injunction against protesters on this basis?

Answer

The court could grant an injunction in these circumstances. Although relating to unlawful encampments of gypsies and travellers primarily, the Supreme Court in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47; [2023] PLSCS 197 has recently confirmed that the court does have jurisdiction to grant injunctions against persons who are unknown and unidentified at the date the injunction order is made and who have not yet performed or threatened to perform the acts which are prohibited by the injunction, including in relation to protests.

The Supreme Court identified this type of injunction as a “newcomer injunction”. Therefore, newcomer injunctions could apply to protesters on a gantry. Such an injunction is only likely to be granted where other remedies are inadequate and/or there is an essential need to protect civil rights and public law, and where appropriate procedural safeguards are put in place to ensure those protesters are able to take part in the proceedings or challenge any injunction granted.

Explanation

Before Wolverhampton, the Court of Appeal in a couple of cases had disagreed as to whether courts had the power to grant newcomer injunctions.

The reason why injunctions against newcomers were being sought in these types of cases was because, in both the traveller and protest context, an injunction against specified individuals only would be ineffective to protect a landowner’s interests. This was because their interests were being repeatedly affected by a constantly changing list of individuals, albeit part of the same wider group (eg Just Stop Oil).

In Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] PLSCS 37, the Court of Appeal decided that final injunctions could not be made against newcomers; when making a final injunction order, it would be necessary for the person(s) seeking an injunction to identify the parties to be bound and to afford them the opportunity to contest the final order sought.

That reasoning was overturned in Barking and Dagenham London Borough Council v Persons Unknown and others [2022] EWCA Civ 13; [2022] EGLR 9, where the Court of Appeal found that such injunctions could be granted. This was the decision appealed to the Supreme Court.

The Supreme Court has now clarified that the court has the jurisdiction to grant an injunction against “newcomers”. Indeed, other than any statutory restrictions that might apply, there is no theoretical limit to a court’s power to award an injunction. Therefore, the distinction between interim and final injunctions is unhelpful in these instances.

In deciding whether to grant a newcomer injunction, the court will be guided by the principles of justice and equity.

Accordingly, the Supreme Court has imposed a number of “safeguards” when considering newcomer injunctions; the court’s discretion to award such an injunction is only likely to be justified where the following conditions are satisfied:

• There is a compelling need which is demonstrated by evidence for the protection of civil rights, anti-social behaviour, etc, which is not adequately met by other measures available. There must be a strong probability that a tort or other unlawful behaviour is to be committed that will cause real harm. In this case, the court will consider what other remedies are available and whether these would be sufficient to achieve the applicant’s objectives. These might include, for instance, any remedies available under the Public Order Act 2023.
• There is procedural protection for the rights of affected newcomers – ie newcomer injunctions are made without notice and so should be advertised widely to give those affected by the injunction an opportunity to make representations before the injunction is made. There should also be a generous “liberty to apply” provision in the injunction order so that affected individuals are able to apply to set it aside.
• There must be full disclosure by applicants of all facts of which the applicant is aware and which might affect the decision of the court. This would include any matter which a protester might raise to oppose the making of an injunction order.
• The terms of the injunction must correspond as closely as possible to the actual or threatened unlawful conduct.
• The injunctions are constrained by both territorial and temporal limitations. Typically, for a newcomer injunction, one year (with the option for renewal) will be the maximum period.
• It is just and convenient for the injunction to be granted against newcomers.

These requirements were said by the Supreme Court only to apply to the specific situation of injunction orders against travellers. It is likely, however, that many of them will be adopted in the protest context as well. Therefore, if the above safeguards can be met, then it is possible that a court would grant an injunction.

To give an application the best chance of success, it is advisable to gather as much evidence as possible as to why that particular gantry could be targeted and what harms this would cause, and to ensure that the terms of the draft order sought are worded tightly to ensure that it goes no further than is necessary to protect your rights.

The court will also expect you to have a thorough plan as to how you intend to publicise any order made and what steps you would take to give potential defendants the opportunity to make representations.

Samuel Lear is a Senior Associate in the Real Estate Disputes team at Charles Russell Speechlys LLP and Yaaser Vanderman is a barrister at Landmark Chambers.

This article was first published in Estates Gazette on 17 January 2024.