The Court of Appeal has today handed down a judgment holding that it is lawful for a court to make a final injunction binding on “newcomers”, which is to say people who have not yet done anything wrong and who therefore cannot be identified, or participate in the hearing, at the time when the injunction is made.
The decision will be of wide interest and application because “newcomer” injunctions have become an increasingly popular remedy over recent years. They are now routinely used not only in the context of injunctions against potential trespassers, but also in a range of other contexts such as against potentially disruptive protestors, as well as to prevent antisocial conduct such as fly-tipping. The decision is also likely to have applications in commercial contexts such as the protection of confidential information, where it has previously been thought that final injunctions can only bind identifiable individuals.
The context was a series of injunctions obtained by Local Authorities to prevent people from setting up encampments on land. In practice, the injunctions were likely to affect Gypsy and Traveller communities. The injunctions were expressed to catch any person who, in the future, does something prohibited by the injunction (for example, setting up an encampment). The High Court discharged the injunctions on the grounds that they should not have been made in circumstances where the individuals in question could not be identified or, therefore, participate in the trial.
In allowing the appeals, the Court of Appeal has held that whilst such injunctions are “exceptional”, the category of cases in which they may be made should not be closed. In so deciding, the Court of Appeal (including the Master of the Rolls) held that its own decision on this same point of principle two years ago (in a constitution which also included the then-Master of the Rolls), but in a protester context, was wrongly decided.
Tristan Jones appeared as Advocate to the Court.
The judgment can be found here.