Injunctions against persons unknown: the importance of valid service

Background

On 16 October 2020 Mr Justice Nicklin made a case management order seeking to manage 38 separate claims brought by various local authorities in which similar injunctions had been granted (sometimes for periods of up to three years) against persons unknown, typically to protect “green spaces” from trespassers and to prevent fly-tipping. Some of these cases were returning before the court seeking an extension to the period granted and a modification of the terms of the original injunction. This case relates to one of those 38 claims identified by the court and covered by the case management order.

The original injunction

On 9 April 2019, Canterbury City Council applied for an injunction against person unknown seeking to protect its open spaces and car parks from “illegal incursions of Travellers”. That application was made without notice, on the basis that there had been regular occurrences of such occupations over the past few years and that the council was aware that a number of other local authorities had been successful in obtaining such relief.

An application for an interim injunction was filed and an order granted the following day prohibiting, amongst other things, persons unknown from:

1. Setting up encampment on any land identified on the attached map without the grant of planning permission or the written permission of the claimant;
2. Entering and/or occupying any part of the land identified on the map for residential purposes (temporary or otherwise), including sitting caravans, mobile homes, vehicles and residential paraphernalia…

The interim order specified that “the order shall be deemed served pursuant to CPR 6.27 by affixing a copy of this order, as opposed to an original, contained in a transparent, waterproof envelope, in a prominent position at each of the entrances to the sites falling within the land identified in the map<span">”. The council undertook to comply with those service requirements and also place a copy of the interim order together with the evidence served in support and its claim form on the council’s website. No provision was made in the interim order for alternative service of the claim form on the defendants, nor did it contain provision regarding service of the application on the defendants or any undertaking to do so. No formal judgment was given and no note was made of the hearing that resulted in the interim order, despite the hearing being held ex parte, i.e. without any representatives of the defendants being present.</span">

On 3 June 2019, the matter came back before the court when the council sought a final order continuing the terms of the interim order for three years. The claimant’s witness evidence confirmed that “to effect service the Council has affixed a copy [of the interim order] at the entrance to each of the sites and displayed it on its website. It has gone further to bring the interim injunction to the attention of others by advertising the fact by press release and Twitter. Nobody has objected to the interim injunction or made themselves known to the Council.” No information was provided by the council in respect of service of the claim form.

A final order was made by the court on similar terms to the interim order, but for a period of one year rather than three years. Like the interim order, the final order did not grant the council permission to serve the claim form by alternative means, nor had a note been made of that hearing, which had also been held ex parte. The final order did include a provision providing that any person who is “presently a Persons Unknown Occupying a site identified in the 4 maps (or anyone notified of this order) who wishes to identify him or herself to join as a named defendant to the proceedings may apply to the court on 72 hours’ written notice to the Court and the Claimant to vary or discharge this Order.”

The renewal application

On 23 June 2020, a further application was filed by the council, seeking to renew the final order on a narrower basis for a further period of two years. Submissions were made in response in which the court’s attention was drawn to the case of Canada Goose -v- Persons Unknown [2019] EWHC 2459 and the requirement that a final injunction cannot be granted (except in limited circumstances) against persons unknown who were not parties at the date of the final order, i.e. individuals who had not committed the prohibited acts, did not fall within the description of the persons unknown as at the date of the final order, and had not been served with the claim form.

Judgment was given on 30 July 2020, in which Thornton J: (i) found that the description of the defendants as persons unknown did not comply with the requirements in Canada Goose; (ii) granted the council permission to amend the description of the defendants in the claim form; (iii) adjourned the hearing; and (iv) granted a short extension to the final order in the interim.

Issue

The court subsequently heard the case of London Borough of Enfield v Persons Unknown [2020] EWHC 2717 (QB), in which the claim form had not been validly served. Following that case, when making the case management order in the present matter, Nicklin J identified that the documents suggested that the council in this case had also failed to validly serve the claim form. In the circumstances, he also made an order specific to this case that the council “by 4.30pm on 23 October 2020… file a witness statement which … demonstrates the method of service of the original claim form, during its period of validity, that is relied upon by the Claimant as giving the court jurisdiction over the Defendants.”

On 27 October 2020, the council filed two witness statements addressing the issue of service of its amended claim form following the adjournment order. No evidence was filed regarding service of the original claim form.

On 28 October 2020 the court emailed the council setting out a number of questions and issues that the court wished to address at the hearing. These included perceived failings by the council regarding its compliance with court rules and procedure, specifically relating to the issue and service of its application notices and claim form, and the lack of notice given to the defendants. Following that email, the council responded indicating an intention to withdraw the renewal application and asking the court to discharge the final order on the basis that: (1) the claim form had not been served personally on any defendant; (2) that no order had been made permitting service of the claim form by alternative means; (3) that the court had not dispensed with the requirement to serve the claim form; and (4) that the period to complete the relevant step to serve the claim form had expired.

Notwithstanding that indication that the council wished to withdraw the renewal application, the court required the hearing to go ahead.

Decision

In respect of the interim order, the court held that the council’s failure to establish whether the application notice had been issued was unsatisfactory. It showed a lax approach to issuing court documents and a failure to understand their importance, of which the court was very critical. With regard to the failure to provide notice of the application for the interim order, the court noted that it was hampered by the lack of a note of the hearing of the original application or copy of the council’s skeleton argument. In any event, the court held that there was no proper justification for treating the application as urgent or for failing to give notice of the application to the defendants. The application should have been issued properly, served in accordance with the rules and listed for a hearing with a skeleton argument being prepared as normal. While a handwritten note (since lost) had been taken of the original application hearing, the court held that it was “basic litigation practice” for a formal note of the hearing to be prepared whilst it was “still fresh in [the] mind” and placed on the file.

Failure validly to serve the claim form meant that the council had been enforcing the interim order and final order in circumstances where it had failed to establish jurisdiction over any defendant. The court therefore ordered that the final order and the extension granted by way of the adjournment order be set aside, and that the council remove copies of the notices displayed at the sites covered by the final injunction. The court noted that there had been “serious failures” on the part of the council “to observe basic procedural rules and safeguards”. The court noted that in circumstances where a local authority discovers that it too has obtained an injunction in a case where the claim form has not been validly served, it is incumbent on that local authority to immediately take steps to remedy the situation (if possible), and it must not continue to rely on the injunction unless the position is remedied.

The court considered on an obiter basis whether a final injunction could be extended without needing to start a new claim. It concluded that it was arguable that a claimant would need to commence a new claim and seek fresh relief, although this is a point which will have to be resolved in a case where it falls directly for determination.

Comment

Following the decision in London Borough of Enfield, this latest case reiterates the importance of ensuring that a claim form is validly served and that the required procedures are properly followed in that regard and in respect of any subsequent applications that may be sought, including in respect of any interim relief. This does not mean that such relief cannot be obtained, but, especially in relation to final orders, it is crucial to ensure alternative service is sought and then implemented.

In addition, a decision to apply without notice and on an urgent basis should not be taken lightly, and this case emphasises the importance of parties acting in compliance with the applicable court rules. In circumstances where a claimant has obtained an injunction against persons unknown and the claim form has not been validly served within the permitted period, it is incumbent on the council to take steps immediately to remedy the situation (if it can). An injunction which has been obtained without such valid service cannot continue to be relied upon, at least until such service is achieved.