SMU Classification: Restricted

 

Dear Norman, Matthew, and Lionel,

 

These cases remind me of an American case (my awareness of which must be credited to Henry Smith’s Equity seminar), United States v. Hall, 472 F.2d 261 (5th Cir. 1972). This was a desegregation case which, in the court’s words, “present[ed] the question whether a district court has power to punish for criminal contempt a person who, though neither a party nor bearing any legal relationship to a party, violates a court order designed to protect the court's judgment in a school desegregation case” (262).

 

The order in question was a structural injunction (i.e. one aimed at restructuring a state institution, in this case a school, to bring it into conformity with the Constitution). It was directed at “[a]ll students of Ribault Senior High School … and other persons acting independently or in concert with them and having notice of this order” (263, emphasis added). Among other things, it purported to prohibit outsiders to the school from entering the school premises. The defendant, Hall, was allegedly part of a militant activist group that had been causing disruption at the school, but otherwise had nothing to do with the proceedings or with any party to them. Hall had been served with the order though he was not named in it nor joined to the proceedings. Hall entered the premises and was arrested, convicted of criminal contempt, and imprisoned.

 

The 5^th Circuit Court of Appeals upheld the conviction on the basis that a court has the “inherent jurisdiction” to issue orders necessary to protect “[t]he integrity of a court's power to render a binding judgment in a case over which it has jurisdiction” (265). The court concluded:

 

We hold, then, that the district court had the inherent power to protect its ability to render a binding judgment between the original parties to the Mims litigation [i.e. the underlying dispute] by issuing an interim ex parte order against an undefinable class of persons. We further hold that willful violation of that order by one having notice of it constitutes criminal contempt. The judgment of the district court is affirmed. (268, emphasis added)

 

Although Hall was a public interest case rather than a private law dispute, the reasoning as stated would seem to apply to all disputes over which a court has jurisdiction, though the court did note that school desegregation cases like Hall required more remedial flexibility (267). One of its subsidiary arguments was that this was not so different from an in rem injunction binding on “members of an undefinable class — those who may come into contact with the property” (266). The connection Norman draws to Mareva injunctions seems apposite.

 

Very best,

Nick

 

 

From: Norman Siebrasse <norman.siebrasse@gmail.com>
Sent: Saturday, October 12, 2024 8:32 PM
To: Lionel Smith <ls2019@cam.ac.uk>
Cc: obligations@uwo.ca
Subject: Re: Newcomer injunctions in the English courts

 

No. The primary claim was framed in terms of “trespass, nuisance and conspiracy.” The primary basis for the order was the protestors were interfering with the plaintiff’s interest in land, namely the right to log, which was characterized as a profit a prendre. The defendant argued that this was actually a public interest and should have been enforced through the Criminal Code and / or by the Attorney General of British Columbia. This argument was rejected. The majority in BCCA held that while the acts at issue were arguably criminal “the purpose and effect of the injunction in such circumstances is not to enforce the criminal law, but to protect private rights.”

 

Also, it's not really my area, but aren't Mareva injunctions enforceable  against non-parties who have notice, eg a third person with control of assets owned by the defendant?

 

 

On Sat, Oct 12, 2024 at 8:39 AM Lionel Smith <ls2019@cam.ac.uk> wrote:

Thank you Norman.

Does this look a bit like legislation as opposed to the resolution of a dispute between persons?

L.

 

 

 

From: Norman Siebrasse <norman.siebrasse@gmail.com>
Date: Saturday, October 12, 2024 at 12:20
To: Lionel Smith <ls2019@cam.ac.uk>
Cc: ODG <obligations@uwo.ca>
Subject: Re: Newcomer injunctions in the English courts

 

The Supreme Court of Canada addressed the issue in MacMillan Bloedel Ltd. v. Simpson [1996] 2 SCR 1048, in the context of protestors who sought to prevent logging of an old-growth forest by blocking public roads in order to prevent the logging trucks from taking out the cut logs. The injunction prohibited certain named defendants, as well as "John Doe, Jane Doe and Persons Unknown" and "all persons having notice of th[e] Order" from engaging in conduct which interfered with MacMillan Bloedel's operations at specified locations. The injunction barred members of the public from blocking a particular bridge and authorized the police to remove offenders in the  following terms:

 

AND THIS COURT FURTHER ORDERS  that any persons attending at or near the Kennedy River Bridge during working hours of the Plaintiff and while vehicles are travelling along the travelled roadway in such area shall situate themselves off that roadway and shall not attend within fifteen feet of that roadway;

AND THIS COURT FURTHER ORDERS that any peace officer be authorized to arrest and remove any person who the peace officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of this order;

 

The orders were enforced:

 

[7] The police arrested over 800 individuals during the summer and fall of 1993 for violating the interlocutory orders obtained by MacMillan Bloedel.  The vast majority of the people arrested were not named as defendants in the Statement of Claim.  Six hundred and twenty-six people were convicted of criminal contempt of court and sanctioned by fines of up to $3,000 and jail terms of up to 60 days.  The individuals arrested came from all parts of Canada and a number of other countries.  The evidence establishes that before arresting a protester, the police followed the practice of handing the injunction to the protester and then reading its contents to him or her.  Upon this being done, most protesters peacefully left the blockade.

 

The order was challenged on the basis that the courts do not have the power in the context of civil litigation between private  parties to enjoin non-parties or members of the public [12]. The SCC upheld the injunction:

 

[42] I conclude that the British Columbia Supreme Court has jurisdiction to make orders enjoining unknown persons from violating court orders.  Such orders are enforceable on the long-standing principle that persons who are not parties to the action, but who violate an order of the court, may be found guilty of contempt for interfering with justice.  Provided that contempt is the only remedy sought, it is not necessary to join all unknown persons in the action under the designation, "John Doe, Jane Doe and Persons Unknown".  Nor, strictly speaking, is it essential that the order refer to unknown persons at all.  However, the long-standing Canadian practice of doing so is commendable because it brings to the attention of such persons the fact that the order may constrain their conduct.  Similarly to be commended is the practice followed by the courts in this case of ensuring that the wording of the orders is clear and that their effect is properly circumscribed.

 

On Sat, Oct 12, 2024 at 8:02 AM Lionel Smith <ls2019@cam.ac.uk> wrote:

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

 

 

 

 

 

 

 

From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Date: Friday, October 11, 2024 at 18:11
To: ODG <obligations@uwo.ca>
Subject: Newcomer injunctions in the English courts

 

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

 

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender.

 

Regulated by the Bar Standards Board.

 

 

Disclaimer

The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.

This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast, a leader in email security and cyber resilience. Mimecast integrates email defenses with brand protection, security awareness training, web security, compliance and other essential capabilities. Mimecast helps protect large and small organizations from malicious activity, human error and technology failure; and to lead the movement toward building a more resilient world. To find out more, visit our website.

 

--

Norman Siebrasse
Professor of Law
University of New Brunswick
Sufficient Description.com

 

--

Norman Siebrasse
Professor of Law
University of New Brunswick
Sufficient Description.com

Norman Siebrasse
Professor of Law
University of New Brunswick
Sufficient Description.com