Gypsy and Traveller injunctions; fighting not feeding the frenzy

Historically speaking, courts have always grappled with the tension between the Article 8 rights of the Gypsy and Traveller community (the right to respect one's private and family life including one’s home) against the issue of trespass. In the last few years, we have seen an outburst of wide-ranging injunctions aimed at the Gypsy and Traveller community which has been described as “something of a feeding frenzy”. 

However, in the recent case of London Borough of Barking and Dagenham and Others v Persons Unknown, London Gypsies and Travellers intervening [2021] EWHC 1201 (QB), the High Court appears to have cracked down on this issue. It was held that the Court cannot grant a final injunction against “Persons Unknown” either against persons who are not, by the date of the hearing of the final injunction regarded as parties to the proceedings (i.e. newcomers) or alternatively, contra mundum (orders which bind the whole world) as the circumstances to do so are very limited and not applicable in this case.

In judgment, Mr Justice Nicklin held that it was fundamental to the English process of civil litigation that the Court cannot grant a final order against someone who is not a party to the claim. Whilst this decision is likely to cause widespread concern to many local authorities who have sought and obtained injunctive relief against “Persons Unknown” for the protection of their local areas, Mr Justice Nicklin has set out a series of steps to take to actively identify defendants in such cases, by way of practical guidance and help.

The outcome of this case reaffirms the fundamental principle that final injunctions do not bind newcomers and that there are no exceptions for Gypsies and Travellers. Practitioners in this field must be careful to comply strictly with the Civil Procedure Rules as it was suspected that a number of the cases brought by the local authorities in this matter were in breach of procedure (specifically, the rules relating to service of Claim Forms and obtaining valid orders for alternative service on Persons Unknown).

This decision recognises the Gypsy and Traveller community’s enshrined right to travel to pastures new and that the occupation of a caravan is an integral part of their ethnic identity. Having said that, the effect of this decision is not limited to just the Gypsy and Traveller community as it also applies to a range of other public and private nuisance cases.

 

An updated version of this article was published in ALARM which can be accessed here.

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Priya
Sejpal

Associate , London

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