I wrote something a while ago about a similar phenomenon in Canada in the public law context. In 1985 the Supreme Court of Canada made a declaration that some statutes were unconstitutional which in our setting means that they were void. The Court, however, suspended the effect of its ruling, giving the legislature time to fix things before the ruling took effect (note that this is not prospective, but suspension of normal retroactivity). In that case a great deal of effort was expended on justifying this then-extraordinary order. Since then, however, such orders have become fairly routine and this arguably undermines the Constitution.

 

The ‘newcomer injunction’ story reminds me of something that Steve Smith discusses in his book on remedies, which is the difference between rules and orders. It is one thing (as Steve would say) to have a rule against speaking with your mouth full at the table, but there are still good reasons to make an order against one of your kids who is breaching the rule.

 

There is something troubling here, however, which is that when I was small I learned that the court cannot make an order against someone unless they are properly before the court, that is, a party. We all know about ex parte proceedings; these are justified as temporary holding procedures. We also know about naming a party as eg Jane Doe to protect their identity; that is different. ‘Persons unknown’ (eg hackers who have hacked a site) are more of a stretch, but these are people who are described by things that they have done in the past, and so who could have been made parties if they had not been so good at hacking. But to make an order against someone who could not possibly be made a party to the proceeding since they have not yet done whatever it is that will make them subject to the order seems, to me, at least strange and arguably unprincipled. It is dressing a rule up as an order for the convenience of one party.

 

Lionel

 

 

 

 

 

 

 

Members of the group with an interest in remedies may remember that last year the UKSC held in Wolverhampton CC v London Gypsies and Travellers [2023] UKSC 47 that the English courts had the power to issue “newcomer” injunctions: injunctions which bind persons who were not presently committing, nor threatening to commit, any wrong against the applicant, and were not yet joined to proceedings (or even yet identified). In essence, the court can generally criminalise (in a specific geographic area) what would otherwise only be tortious conduct.

 

Various concerns have been raised about this power in the interim, including by some on this list, but one point which struck me at the time is the assertion of Lords Reed, Briggs and Kitchin (with whom Lord Hodge and Lloyd Jones agreed) at [225] that: “It is to be remembered that this is an exceptional remedy”.

 

That to me sounded similar to the reassurance given by judges in the 1970s about the new forms of injunction then being developed, e.g.: “such an order can only be justified in the most exceptional circumstances” (Anton Pillar [1976] Ch 55, 58). In other words, not in the gift of the court, and likely to be proved untrue very quickly: as Millett LJ observed in Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818 , 824E of the other ‘nuclear weapon’ innovated at the same time: "The Mareva jurisdiction was established in 1975 as an exceptional remedy to prevent a foreign defendant from defeating any ultimate judgment by removing his assets from the jurisdiction. It was progressively extended” – extended to the point that just this week, Popplewell LJ declared that it was wrong to think of freezing orders as a “nuclear weapon” given how often they are issued: Unitel v dos Santos [2024] EWCA Civ 1109 at [128] (and agreed with Flaux C that the correct merits test was “serious issue to be tried”).

 

So it is with “newcomer injunctions”: today, Julian Knowles J handed down two such injunctions (London City Airport v Persons Unknown [2024] EWHC 2557 (KB) and Thurrock Council v Adams [2024] EWHC 2576 (KB)) and in both judgments cited 7 other cases since the decision in Wolverhampton where such injunctions have been granted. He makes no reference to “exceptional remedy” in doing so.

 

I would be interested to know from members outside of England (given the UKSC doesn’t seem to engage in much comparative analysis in Wolverhampton) whether their courts have claimed a similar power, and whether the results have been similar: a rapid proliferation of such orders.

 

Matthew Hoyle

Barrister

One Essex Court

 

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