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Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13

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24th January 2022

The Wild (Canada) Goose Chase concerning Final Injunctions Against ‘Persons Unknown’

It is rare for a Court of Appeal to try to overrule a previous recent Court of Appeal decision.  It happened recently in Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13.  This article will explain the issue upon which the two Courts of Appeals have such divergent views.

Injunctions against Persons Unknown

It has been recognised since at least 2003 that injunctions could be made against described ‘Persons Unknown’, when it was known that someone was committing or was threatening to commit a wrong, but the identity of that person was unknown.  In Bloomsbury Publishing Group v News Group Newspapers [2003] 1 WLR 1633, the publishers obtained an injunction against ‘Persons Unknown’ prohibiting the publication or dissemination of a Harry Potter novel that had been stolen prior to its release in bookshops.  In Hampshire Waste Services v Persons Intending to Trespass and/or Trespassing upon Incinerator Sites [2003] EWHC 1738 (Ch);  [2004] Env LR 196, the claimant utility provider successfully obtained an injunction to restrain trespassory protests of which it had obtained advance notice.

In South Cambridgeshire District Council v. Gammell [2005] EWCA Civ 1429, the Court of Appeal explained that, where an injunction was made against ‘Persons Unknown’ restraining certain behaviour, a person became a party to the litigation, and stood in breach of the injunction, once they behaved in the offending way.  Whether they were at risk of committal for the breach depended on whether they were aware of the injunction when they committed the breach.

Injunctions to restrain trespass by ‘Persons Unknown’ were relatively straight-forward because trespass is actionable as of right, and so is easy to prove.  They are also fairly uncontroversial, it being widely accepted that a landowner is entitled to keep others off his land if he chooses to do so.

Injunctions against Persons Unknown to restrain Protest by Unlawful Direct Action

In recent times, however, ‘Persons Unknown’ injunctions have become popular with those fearing that their lawful activities will be disrupted by unlawful direct action protest by unknown protestors.  If an injunction against ‘Persons Unknown’, prohibiting the unlawful protest behaviour, is obtained, then any protestor who breaches the injunction would become a party to the litigation.  Further, if they were aware of the injunction at the time that they breached it, they would be liable to committal for contempt of Court.  Such injunctions have become more controversial.  Protestors argue that they have a chilling effect and tend to suppress both lawful and unlawful protest;  and that they amount to wrongful interference with protestors’ freedom of expression and freedom of peaceful assembly pursuant to articles 10 and 11 of the European Convention on Human Rights.

In Ineos Upstream v Persons Unknown [2019] EWCA Civ 515;  [2019] 4 WLR 100 (also known as Boyd v Ineos Upstream), the Court of Appeal considered an interim injunction made against protestors and set down various principles to be applied when such injunctions were sought.  In particular, it was emphasised that:

• Defendants should be identified and named when they can be identified and named;
• It had to be possible to give effective notice of the injunction and for the method of such notice to be set out in the order;
• The injunctions must be worded clearly and precisely so that there can be no doubt what has been prohibited; and
• The injunction ought to have clear geographical and temporal limits.

Cameron v Liverpool Victoria:  the Importance of Service

The issue on which the two recent Courts of Appeal have differed so strikingly started with a case that did not concern injunctions at all.  In Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6;  [2019] 1 WLR 1471, the claimant was injured in a hit and run accident.  The car which had caused the injury was identified, but the driver was not and could not be identified or found.  The claimant sought permission to amend its claim to join as a defendant to the claim “the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013.”  Whether the claimant was entitled to do so ultimately came before the Supreme Court.  The leading judgment was given by Lord Sumption JSC who explained as follows:

• The Court’s jurisdiction over a party has its origin in the valid and proper service of the proceedings on that party, which gives that party notice of the claim against him and the opportunity to be heard. If the unknown described defendant can never be served then it cannot be appropriate to issue or pursue proceedings against him because he can never fall under the jurisdiction of the Court.
• For that reason, it is necessary to distinguish between two kinds of case. The first is where the anonymous defendants are identifiable in some way.  Their names may be unknown but they are identifiable.  The second is where the anonymous defendants cannot even be identified.  In the first category, it is possible to locate or communicate with the anonymous described defendant and to know without further inquiry whether any particular person is the described defendant, whereas in the second category it is not.
• Orders against squatters fall into the first category. Although the identities of those trespassing might not be known, they are identifiable by their location.  They can be communicated with.  Documents left at that location might reasonably be assumed to come to their attention.
• The hit and run accident was, however, a past event. The driver was never going to be identified.  He or she could never be served and would never been served.  He or she would never fall under the jurisdiction of the Court.  That was not just a practical problem, but also a conceptual problem going to the right of a defendant to be heard, a fundamental principle of natural justice.
• For those reasons, the application to amend the proceedings was dismissed.

Canada Goose – the Problem of ‘Newcomers’

In Canada Goose v Persons Unknown [2019] EWHC 2459 (QB), the clothing retailer had been subject to unlawful direct action protest at its Oxford Street store by protestors against the sale of animal fur products.  It sought, and obtained, an interim injunction to restrain those unlawful protests.  As claimant, it was responsible for progressing the litigation and so, in due course, it applied for a final order by way of summary judgment.  The hearing came before Nicklin J who dismissed the application for several reasons.  One of those reasons, however, concerned the propriety of making a final injunction against persons unknown.

In addition to the two categories of persons unknown identified in Cameron, Nicklin J identified a third category, which he described as “Newcomers”.  These were persons who had not been served with the proceedings, nor been involved in the unlawful protests at the time of the trial.  They were not parties to the litigation and so they would be Newcomers to the injunction if and when they committed one of the prohibited acts and thereby became parties to the litigation and subject to the injunction.  He considered that it was objectionable for such Newcomers to be subject to final orders of the Court in that way without having been heard.  Counsel for Canada Goose submitted that the order should permit such Newcomers to apply to vary or discharge the order in such circumstances, and that, at that stage, the persons unknown had the right to be heard;  but Nicklin J considered that submission to be “absurd” and turning the principles of civil litigation on their head.  There would be no finality to litigation, which might potentially continue indefinitely as more Newcomers came to the proceedings.  He considered that unknown individuals, without notice of the proceedings, should not find that they have judgment and a final injunction granted against them.

He explained that, save in those exceptional cases when an injunction was made against the whole world, an injunction only operated as between the parties to litigation.  When asked at trial to make a final injunction against a person, the Court had to consider whether or not there was evidence which justified the making of the final injunction against that particular person.  When a ‘person unknown’ could not be identified, not even by photographic image, then there could be no evidence against that person and the Court was unable to determine whether it was appropriate to order the injunction sought.  Further, not being parties to the litigation, they would not have had any opportunity to be heard at the hearing where the order was made.  It followed that a final injunction could not be made against persons unknown who were Newcomers.  Final injunctions could only be made against those who had been served with the proceedings (and were therefore identifiable) or who had become parties by breaching the interim injunctions (and who were therefore identifiable) and therefore had the opportunity to be heard at the trial.

Nicklin J gave Canada Goose permission to appeal, and the Court of Appeal, of its own motion, expedited the appeal.  Ultimately, however, it upheld Nicklin J’s judgment, essentially for the reasons that he gave.  The judgment is reported at [2020] EWCA Civ 303;  [2020] 1 WLR 2802.  The decision to dismiss the appeal in Canada Goose was first taken for other reasons relating to lack of proper service.  However, the Court went on to consider the arguments concerning final injunctions against persons unknown and went out of its way to state that it would have dismissed the appeal on the ground that a final injunction cannot be granted in a protestor case against persons unknown who are not already parties at the date of the final order – that is to say Newcomers who have not by that time committed the prohibited acts and so do not fall within the description of persons unknown and who have not been served with the Claim Form.  That was said to be consistent with the principle emphasised in Cameron, that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard.

It followed therefore that Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch) had been wrongly decided.  In Vastint, a final injunction had been granted against persons unknown restraining them from entering or remaining at the site of a former Tetley Brewery (for the purpose of organising or attending illegal raves).  The injunction as expressed would apply to  anyone to trespassed on the land, whether or not they had previously trespassed on the land and whether or not they had been served with the proceedings.  The Judge in Vastint had relied on Bloomsbury, Hampshire Waste and Gammell (amongst others) and considered that the making of such orders was settled practice provided that the orders were expressed in clear terms.  The Court of Appeal in Canada Goose considered that he was wrong to take that view.

Barking and Dagenham – a Complete About Turn

In Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13 the Court of Appeal heard appeals from several local authorities who had obtained injunctions prohibiting persons unknown from trespassing on local authority land by setting up unauthorised encampments.  Following the Court of Appeal’s decision in Canada Goose, Nicklin J effectively caused the injunctions obtained by the local authorities to be reviewed and assessed against the principles set down in Canada Goose at a 2 day hearing.  He made a series of orders discharging the injunctions and giving consequential directions.  He made it clear that final injunctions must be phrased in such a way as not to catch Newcomers.  He explained that Gammell was a case concerning breach of an interim injunction, and was not authority for the proposition that final injunctions could be made against persons unknown.  The local authorities appealed.

The Court of Appeal in Barking and Dagenham conducted a comprehensive review of the authorities concerning injunctions against Persons Unknown.  It clarified immediately that there was no theoretical or jurisdictional basis for treating trespass injunctions differently from protestor injunctions.  Canada Goose could not therefore be distinguished on the grounds that it concerned a protestor injunction.  Further, and fundamentally disagreeing with what had been said by Nicklin J, the Court considered that there was no fundamental difference between interim and final junctions.  As the Court had jurisdiction to make interim orders in terms that would take effect against Newcomers (as in Gammell) it followed that it had jurisdiction to make final orders in such terms that they would have effect against Newcomers.

The Court considered that Cameron had been misunderstood.  Lord Sumption JSC had not been concerned with Newcomers;  but, in any event, his comments did not identify any jurisdictional problem with final orders against Newcomers because, whether the injunction was an interim injunction or a final injunction, before any steps could be taken against Newcomers, they would necessarily have become aware of the proceedings and of the orders made, and made themselves parties to the proceedings by breaching the order(s).  They would, at that point, have the opportunity to be heard by the Court and so would fall within the jurisdiction of the Court.

It followed that Vastint had been correctly decided.

Further, far from being “absurd”, Counsel for Canada Goose had been correct to suggest that final injunctions should be kept under review and that it was open to any Newcomer who became a party to the proceedings to be heard on the injunction.  That does not offend against the principle of finality of litigation because for as long as the Court is concerned with the enforcement of an order the action is not at an end.  In any event, many of the injunctions had been made without a full trial.

The Court of Appeal in Canada Goose had fallen into error because:

• it had misunderstood Cameron (which had not been concerned with Newcomers);
• it had not appreciated the full and proper reasoning and effect of Gammell (which explained how newcomers became parties to the litigation upon breaching the order); and
• it had not appreciated the full and proper reasoning and effect of Ineos Upstream v Persons Unknown (which had applied Gammell to protestor injunctions).

It is clear that the Court of Appeal in Barking and Dagenham disagreed profoundly and fundamentally with the Court of Appeal in Canada Goose.  The question that then arose was whether they were nevertheless compelled by precedent to follow Canada Goose;  or whether they could decline to follow it.

In Young v. Bristol Aeroplane Co Ltd [1944] KB 718, three exceptions to the rule that the Court of Appeal is bound by its previous decisions were identified.  First, where there are already two conflicting Court of Appeal decisions, the Court of Appeal can decide which of those two decisions to follow.  Secondly, the Court of Appeal is bound to refuse to follow a decision of its own which cannot stand with a subsequent decision of the Supreme Court.  Finally, the Court of Appeal is not bound to follow a decision of its own if that prior decision was given without proper regard to previous binding authority.

The Court in Barking and Dagenham considered that the first and third of those principles applied.  It considered that Canada Goose was inconsistent with Gammell and Ineos so there were inconsistent Court of Appeal decisions.  Further, it considered that Canada Goose had been given without proper regard to the binding authority of Gammell and Ineos, which it ought to have followed.  It followed that the Court in Barking and Dagenham was not compelled to follow Canada Goose and it declined to do so.  The appeals were allowed and the Court of Appeal declared that 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 (Newcomers), from occupying and trespassing on local authority land.

Where does that leave us? 

On one view, there are now two Court of Appeal decisions, taking completely divergent and opposing views on fundamental issues of principle.

On the other hand,

• Whilst the Court of Appeal in Barking and Dagenham did not categorise what was said about persons unknown in Canada Goose as being obiter, it did take the view that those comments had been made per incuriam. On that view, Canada Goose was bad law and need not be followed.
• Further, it is clear that the Court of Appeal in Barking and Dagenham was attempting to demolish the reasoning in Canada Goose to such an extent that it will no longer be followed. The arguments used to do so are powerful and, to this author’s mind, the more convincing.

But the issue on which the two Courts differed so strikingly is a fundamental one:  whether it is objectionable as a matter of principle that Newcomers to an injunction order should find themselves subject to a final order (and, moreover, in breach of it) without having been given notice of the proceedings and an opportunity to be heard at the hearing at which that injunction was injunction.  There is no authority directly considering that issue other than Canada Goose and Barking and Dagenham.  Canada Goose says that it is objectionable;  Barking and Dagenham says that it is not.

All Court orders must be complied with until they are set aside, whether or not they were made on an interim basis or by way of final disposal of the case.  Further, if it is not, in principle, objectionable for a person to find that they have become a party to litigation as a consequence of breaching an interim order (made at a hearing of which they were not given notice), there is no obvious reason why it should be objectionable for a person to find that they have become a party to litigation as a consequence of breaching a final order (made at a hearing of which they were not given notice).  There can be no issue estoppel or res judicata operating to prevent the newly joined party from challenging the order – even if that leads to a re-litigation of the case.  That the test that the Court will apply if the order is challenged by the newly joined defendant might be different if the order is a final order than if the order is an interim one appears to be a matter of procedural detail rather than something that fundamentally changes the justice of the situation.

Ultimately, however, certainty will only be achieved once there have been a series of Court of Appeal decisions following one or the other;  or if the issue is resolved by the Supreme Court.  Surely the case will now be heard by the Supreme Court.

Post Script – In due course, the Supreme Court did give permission for an appeal of the Court of Appeal’s decision in Barking & Dagenham.  That appeal was heard over two days on 8^th and 9^th February 2023.  Judgment is expected before the Summer.

By Tim Polli QC

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