Newcomers, Black Swans and Persons Unknown - but what’s the punch line? UK Supreme Court rules
In a recent decision of the UK Supreme in Wolverhampton City Council v London Gypsies and Travellers, it was held that the court has power to grant “newcomer injunctions” ie injunctions against persons who are unknown and unidentified at the date of the grant of the injunction, and who have not yet performed, or even threatened to perform, the acts which the injunction prohibits. These persons are known as “newcomers” and the injunctions made against them are known as “newcomer injunctions”.
This appeal concerns injunctions obtained by local authorities to prevent unauthorised encampments by Gypsies and Travellers. The Supreme Court was asked to decide whether the court has the power to grant such injunctions. Newcomer injunctions are a wholly new form of injunction, which are granted without prior notice against persons who cannot be known at the time the order is made. They therefore potentially apply to anyone in the world. The injunctions seek to enforce the local authorities’ legal rights in proceedings where there is no real dispute to be resolved. Even when they are interim in form, newcomer injunctions operate in substance against newcomers on a medium to long-term basis, rather than as an emergency short-term measure to protect local authorities’ rights pending a later trial process.
It was held that the court has jurisdiction, or power, to grant newcomer injunctions because its power to grant injunctions is unlimited, subject to any relevant statutory restrictions. The power is equitable in origin, and has been confirmed and restated by Parliament in section 37(1) of the Senior Courts Act 1981. The authors of this blog note that this Act has a similar history and pedigree to legislation in the offshore jurisdictions. It was held that the court’s power to grant injunctions is not limited to pre-existing, established categories. Injunctions may be granted in new circumstances as and when required by the principles of justice and equity which underpin them. This is demonstrated by the courts’ development of several new kinds of injunctions over the last 50 years, including freezing injunctions, search orders, third party disclosure orders, internet blocking orders, and anti-suit injunctions.
The decision demonstrates the power of the law of equity, its flexibility and broad application. The case is also highly pertinent to developments in injunction law relating to asset tracing in digital currency (listen to our podcast here) against “persons unknown” as well as the key decision of the Privy Council in Broad Idea releasing the shackles of the “Black Swan jurisdiction” (see our blog).
Decisions of the UK Supreme Court are persuasive in offshore jurisdictions and are therefore of interest to how the offshore court might deal with similar situations in the future.