This recent decision gives comfort to a number of companies and other entities, particularly in the Energy sector, who have obtained similar injunctions: Wolverhampton City Council and others v London Gypsies and Travellers.
Whilst this case related specifically to injunctions obtained by various Councils in relation to traveller encampments, the decision is more far reaching. This is as a result of the rise of the use of similar injunctions against so called “newcomers” in relation to areas as diverse as environmental protests, breaches of intellectual property rights and unlawful activities on social media.
Summary of Issues and background were presented by Lord Briggs
“Newcomers” are considered to be people who haven’t yet done anything in breach of the terms of the injunction and so cannot be identified, or participate in the proceedings, at the time when the injunction is made.
The Court of Appeal decided that any newcomer aware of the injunction could become Defendant by breaching its terms. The Supreme Court has upheld this decision although for different reasons.
The Supreme Court has decided that newcomer injunctions subject to safeguards may be granted to ensure compliance with the law. In their view the general principle of injunctions is that they are to be obeyed. The decision was made on the basis that:
- Injunctions continue to be an equitable remedy
- The relevant right should be remedial. Equity looks at substance instead of form. Equity is not constrained by any rule or principle.
The Court explained that they looked at the way equity has propelled development of injunctions and has broken through every limiting rule. However, they equally made clear that these newcomer injunctions will only be granted if there is compelling need to do so in order to ensure compliance with planning and public law and then only when there is no other available remedy possible to ensure such compliance.
Where there may be newcomers, every effort needs to be made to make them aware of the injunction. Every potential defendant is to be provided a proper opportunity to contest the injunction both in the lead up to the injunction and following the grant of the injunction. This should be done through advertisement on the internet in advance of the intended application, and proper notification once granted on the affected sites and via whatever alternative means appear appropriate.
In addition, and whilst this is not a change to the process per se, it is now beyond any doubt that anyone applying for an injunction should make full disclosure to the court (after due research of facts and matters) that may go against the injunction they are seeking.
This decision provides guidance to those making applications for injunctions which may include newcomers and clarifies that this equitable jurisdiction should be prepared to flex to keep pace with the changing legal landscape. What hasn’t changed is the need for careful consideration of the facts and evidence in support of any application and the need to be very precise in the way in which they are then formulated.