On 29 November the UK Supreme Court released its judgment that “newcomer” injunctions are permissible. Newcomer injunctions, unlike traditional injunctions, relate to people who are unknown and have not performed or threatened to perform the prohibited act at the time the injunction is granted. This ruling comes after a series of local authorities obtained injunctions preventing “Gypsies” and Travellers from setting up encampments on land owned/controlled by local authorities. Because the identity of the “Gypsies” and Travellers were unknown prior to their arrival on the land, the injunctions were addressed to “persons unknown” and their interests were not represented.
In 2020 many of the local authorities in question applied to the High Court to extend which were set to come to an end. Upon examination, the High Court judge decided that there needed to be a review of all newcomer injunctions affecting “Gypsies” and Travellers and gave three organizations, the London Gypsies and Travellers, Friends, Families and Travellers, and the Derbyshire Gypsy Liaison Group, permission to intervene to make sure the interests of “Gypsies” and Travellers were represented. The High Court found that the court did not have the authority to grant newcomer injunctions unless they interim injunctions. On appeal the Court of Appeal found that the court did have the authority to grant newcomer injunctions. This decision was appealed to the Supreme Court and was heard in February of 2023.
The Supreme Court unanimously dismissed the appeal, stating that, “there is nothing in this consideration which calls into question the development of newcomer injunctions as a matter of principle, and we are satisfied they have been and remain a valuable and proportionate remedy in appropriate cases”. The reasoning presented hinged on the fact that the ability of the court to grant or even develop any form of injunction is limited only by statute. The court illustrated this by pointing to the development of several types of injunctions over the last fifty years as well as how the power has been confirmed by legislation in section 37(1) of the Senior Courts Act 1981.
When it comes to the specifics of granting newcomer injunctions against “Gypsy” and Traveller communities the court did have a nuanced approach. They stated that in principle newcomer injunctions made against “Gypsies” and Travellers are permissible as such injunctions are often made relating to land that “Gypsies” and Travellers do not have “any right or liberty to set up unauthorised encampments” on. For this reason, most of these injunctions are simply vindicating the rights of a local authorities. However, the court did acknowledge that in these circumstances greater consideration is required. They stated there are limits when it comes to newcomer injunctions against “Gypsies” and Travellers. For example, the Court said that newcomer injunctions should not be granted over a whole borough if their duration is over a year, as this would likely prevent “Gypsies” and Travellers from living a nomadic life. The Court stated that even permissible injunctions should be subject to periodic review, should expire after a year if not renewed, and that the local authority should advertise its intention to apply for an injunction prior to doing so. The judgement also provides criteria that should be used when deciding whether to grant a newcomer injunction against the “Gypsy” and Traveller communities. Primarily a judge should be guided by the principles of justice and equity and look to see if there are other remedies, if the application and order requested provide sufficient procedural protection of newcomers’ rights, did the applicant comply with the duty of disclosure which comes with making a without notice application, and did the applicant demonstrate that it is just and convenient that order be made?
While on the face of it, this decision is not the victory that those in the “Gypsy” and Traveller communities may have hoped for, it is undoubtedly a positive development. While the judgment upholds the Court’s authority over the area of injunctions, it acknowledges that such wide and long-lasting injunctions often have a profoundly negative effect on allowing “Gypsies” and Travellers to live their traditionally nomadic lifestyle. In response to the judgement, one of the intervening organizations, London Gypsies and Travellers, noted their pleasure that “The Supreme Court has recognised that the lack of sites and stopping places for Gypsies and Travellers is the fundamental problem and that use of wide injunctions offers no real solutions.” This judgement and the guidelines it contains provide hope for the future of “Gypsy” and Traveller rights and protection of their lifestyle.
Click here for the full judgement in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47 https://www.supremecourt.uk/cases/docs/uksc-2022-0046-judgment.pdf