Trespass, protest and prevention: understanding newcomer injunctions

00:00:05 David Lee, podcast host

Hello and welcome to Podcast by Brodies.

I'm your host, David Lee, and in this episode we're exploring the issue of newcomer injunctions and the role they play in protecting businesses and organisations from future protests and trespasses and occupations.

Joining me to discuss this very live topic are Lucie Barnes, a real estate partner at Brodies, and Katharine Holland KC, an expert in property litigation disputes. Welcome to you both.

Lucie, we'll start with you and as ever in podcast by Brodies, we'll start with definitions. Just tell me first of all, what exactly is a newcomer injunction and what's its purpose?

00:00:49 Lucie Barnes, partner

Thank you, David.

A newcomer injunction, it is a species of injunction that we use in relation to trespass. And it's essentially a court order that's granted restricting particular acts on land or property.

And it's generally against persons who are unknown and unidentified at the date of that particular order.

But in the newcomer world, the said unknown persons don't have to have yet performed or even threatened to perform the acts which the court order is seeking to restrict.

00:01:31 David Lee, podcast host

Okay, and what type of businesses or organisations are newcomer injunctions most relevant to, Lucie?

00:01:41 Lucie Barnes, partner

They're really relevant to any business that has land or property holdings and they should, folks should be alive to them.

The kind of the lightning speed of social mood shifts these days means that many businesses can be exposed to the risk of some form of unlawful occupation.

I think it's most relevant for high-profile businesses with easily accessible sites, whether that's cityscape, construction development, perhaps, right for curious influences on cranes, taking photographs, or indeed petrol station forecourts.

00:02:28 David Lee, podcast host

Okay, thanks very much.

And coming to you, Katharine, you obtained the first trespass injunction against persons unknown in 2003 in the Hampshire Waste case.

Can you tell us a bit about that case and why it was significant?

00:02:44 Katharine Holland KC, Landmark Chambers

Yes, thank you. So the story really began with these newcomer injunctions with that case when it was going to be the Global Day of Action against Incinerators in 2003.

And there was an incinerator company who had suffered on previous occasions at that event. It had caused a great deal of damage for them.

And the vice chancellor decided that he would be willing to give an injunction in relation to all of their sites, even though only one was probably going to be affected, and even though there was no person identifiable by the claimant.

So everything pointed to the need and the appropriate occasion for the grant of an injunction, except that the potential wrongdoers could not be named.

That was the critical point and the critical turning point which led to the introduction of this new area of law on newcomer injunctions. The court decided that wasn't going to get in the way of an injunction being granted, and it would grant the injunction against persons unknown.

And there's a technical description, and it usually goes along something along the lines of persons unknown who, without the consent of the claimant, are entering upon a certain site in connection with a certain activity.

So that's how it began in 2003.

00:04:17 David Lee, podcast host

Okay, thanks very much. And 2003 is quite a long time ago now. Just very briefly, how would you say the landscape has changed and evolved in terms of these particular types of newcomer injunctions since then?

00:04:33 Katharine Holland KC, Landmark Chambers

So it's extraordinary, really. It took 20 years for it to go from the decision in Hampshire Waste and Persons on Loan to a full scrutiny in the Supreme Court.

During that time, the rules and the law revolved a lot. And as a result of the Supreme Court having given a full analysis of the entire area in the course of the decision, which we'll perhaps come on to talk about subsequently, the position is that there's a very strong and specific technical context for these injunctions now, with very specialist rules.

And so it's been quite a journey of how the law has developed in those 20 years.

00:05:21 David Lee, podcast host

Okay, thanks very much.

And Lucie, can you tell us a bit why, building on what Katharine's just said there, what has driven the growing interest in newcomer injunctions in more recent years?

00:05:35 Lucie Barnes, partner

I think it's the obvious broad utility in protecting, specific businesses, supporting UK infrastructure, food, energy and security.

I'd definitely be keen for Katharine's comments, but I think there is a part of this where perhaps statutory protections have perhaps failed to keep pace with the relentless speed of some disruption. And the common law is essentially looking to fill that gap.

00:06:12 Katharine Holland KC, Landmark Chambers

Yeah, can I just come on that?

Because I think that was very much at the heart of the Supreme Court's decision, exactly what Lucie's just said.

Most particularly in their opinions, they expressed the point that it was the advent of the internet which was allowing potential wrongdoing against the veil of anonymity.

And if you couldn't grant an injunction against persons unknown, you were effectively conferring immunity upon persons who were able to, as I say, have a veil of anonymity because of the internet.

And that's very much been a trigger for this jurisdiction.

Although having said that, perhaps looking back, it's surprising that in 2003, this sort of jurisdiction of granting orders against persons on land wasn't in place because there was a very, very long history of the specific form of procedure where trespassers have already entered onto land to be able to get a possession order requiring them to leave.

So it was perhaps strange that given that very established jurisdiction, that no one had previously thought about how you prevented the situation occurring in the beginning.

00:07:46 David Lee, podcast host

OK, thanks very much. And we'll come to another one of those landmark cases. This one was Wolverhampton City Council against London Gypsies and Travellers 2023.

Now tell us, Katharine, why was that case so important in this area?

00:08:03 Katharine Holland KC, Landmark Chambers

So it was hugely important in a variety of respects, but going back to what Lucie said at the very outset, the critical issue in the Supreme Court decision case was whether you could have an order that impacted upon individuals when they were unidentifiable at the date the order was granted, and there had been no wrongdoing on their part whatsoever.

They hadn't infringed any rights or duties at all.

And a court order is put in place, as I say, before they're identifiable and before there is any wrongdoing.

Now, the breadth of that question necessarily led to the Supreme Court exploring a vast array of case law on what court powers that were actually in existence that they could rely upon and the principles they could rely upon in order to say that a remedy of that nature was appropriate.

But in the course of it, they obviously set out a good deal about the safeguards which needed to be in place if you were going to grant that form of order.

And subsequently, in a later case of Valero that went on to apply it in this in the context that we're talking about of direct action trespass, Mr Justice Ritchie, having referred to Wolverhampton, described the jurisdiction as a nuclear option akin to a temporary piece of legislation affecting all citizens in England and Wales for the future.

And the reason that I refer to that is because you can see why, given the enormity of it as a nuclear option akin to a piece of temporary legislation affecting everyone for the future, is that you've got to have very, very, very serious safeguards in place.

And that was one of the themes that was very at the heart of the Supreme Court's decision of maximising that protection. And in describing it as a temporary piece of legislation, the injunction is obtained on a without notice basis.

It's a novel form of injunction, Supreme Court say, by reason of the fact that it's not an interim injunction or a final injunction, it's a hybrid remedy. And it's usually in place more as a means of, more of a means of enforcement rather than a form of dispute resolution.

So it tends to arise where there isn't any great dispute of fact, But that a remedy is necessary in order to protect and vindicate someone's rights, and where there is no other remedy, that will be appropriate in the situation.

So that was very much a theme of the Supreme Court.

00:11:04 David Lee, podcast host

Okay, thanks very much.

And you touched earlier on, Katharine, about how, you know, the advent and the growth of the internet and rapid fire communication was changing the nature of protest and trespass and occupation and so on.

As protest tactics do continue to kind of evolve and develop, how do you see courts responding in future?

I know while understanding this is a bit of crystal ball gazing.

00:11:34 Katharine Holland KC, Landmark Chambers

No, I think it's very much a question to be asked at the moment because not only with the Supreme Court, but in other judgments, for example, the Court of Appeal in 2019 have expressed the view, one has to be inherently cautious in granting these sorts of injunctions.

And so we're very much seeing some of the practical consequences of the courts being so cautious.

And one development in the law, flowing from the Wolverhampton decision as well, is the need for a review of injunctions. So the court won't just grant an injunction and then leave the case alone.

one needs to generally go back in most cases a year later where the court will review whether it's still appropriate for that injunction to be in place.

And it will generally only grant them for short periods now. So that's very much part of the current form of interest on these injunctions is how long the court is willing to grant them for and for how long they will last.

00:12:37 David Lee, podcast host

And so are the courts generally, Katharine, do you think still seeing them as the nuclear option? Does that phrase still apply?

00:12:44 Katharine Holland KC, Landmark Chambers

That phrase still applies and it's very much at the heart of the guidance of when a court is asked to give this form of injunction, yes.

00:12:51 David Lee, podcast host

Okay, thank you.

So coming to you, Lucie, flipping it and looking at it from a business perspective, what practical steps can be taken to protect a business against protest, trespass or occupation?

00:13:07 Lucie Barnes, partner

Yeah, I think health and safety risks involved when there are incursions, when there are incidents, they can obviously be a big issue for businesses.

So early advice, a very practical step, early advice and implementing that advice, whether that's dealing with physical infrastructure or staff training, etc.

Businesses can very readily improve their protective, their protections by looking at those health and safety risks that might occur if incidents happen.

That really should be a top priority for all businesses. Key, as well, is intelligence gathering.

On the ground through word of mouth, security, front desk, and particularly, again, going back to the internet point, monitoring social media.

So improving regular monitoring, keeping records of incidents, and as I say, checking in and monitoring social media, or have there been any threats of incursions? Is there perhaps a pattern of behaviour that's leading to a possible escalation?

I think it's true to say that most solicitors and barristers in this space, you know, have their precedent documents for when these things, you know, we think these things might occur and ready to go.

So the real big job is the evidence gathering job. It's critical for businesses to take those practical steps beforehand.

00:14:53 David Lee, podcast host

And in a very general sense, Lucie, what's your experience of how well-prepared businesses who are more likely to face challenges in this area, are they, do they generally take those steps or do they need a bit of support and encouragement to do so?

00:15:11 Lucie Barnes, partner

In my experience, it varies sector to sector.

So those that have experienced this for many, many years, obviously have those procedures and processes in place more readily. For others who are perhaps being captured by a current mood, then they're obviously not so prepared generally.

00:15:38 David Lee, podcast host

Okay, and just on another practical point, Lucie, what are the kind of challenges that businesses might face or what do they need to consider when they're seeking a newcomer injunction?

00:15:54 Lucie Barnes, partner

The crux of it is, and it's capturing everything that Katharine said about it, this is a nuclear option – judges don't do these things lightly. It is a draconian measure.

And kind of when you say it on very simple terms, you know, it's a court document that's going to restrict people that have never made a threat and to the whole world potentially. You know, it sounds bonkers in plain English.

So judges absolutely don't take these things lightly and nor does anybody working in this space as well.

So it's thinking about how am I going to put this before a judge and show to that judge that this is appropriate in these particular circumstances that are happening in this particular situation?

And I kind of go back to the evidence package. Does that evidence package stand up to judicious scrutiny? Why is it only that the newcomer is going to achieve the objective? Is it the least restrictive or the most proportionate way of protecting the rights? And then finally, is it actually urgent?

There is a test of urgency. A party wishing to obtain a newcomer cannot sit on their laurels given the draconian measure that it is.

00:17:19 David Lee, podcast host

So Katharine, that's quite a lot of questions for any business to kind of think about if it is looking at the possibility of a newcomer injunction.

So if you're advising a business on a board facing a potentially serious risk of something, a protest or a trespass that might require this kind of injunction, what's your big message to them? What do you say to them? What are those headlines that they can really understand and take on board?

00:17:53 Katharine Holland KC, Landmark Chambers

I think there are two themes which I would respond with.

The first is that is to always bear in mind that everyone has the right to protest and that is critically embedded in the law. So there's no injunctions against protest. It is an injunction against direct action, which causes the types of health and safety risks that Lucie's talked about, potentially to those involved in the direct action.

So it's not, I think it's critically important for any business doing this, is that everyone does have the right to protest. The persons who may be engaged in activity may be engaged in things that are entirely lawful and that has to be respected.

It's when you've got direct action which is leading to a wrongdoing in the form of trespass or potentially nuisance or some others – that's what is important.

In order to get the form of draconian order that Lucie's described, you have to go through the hoops of a good deal of technical rules, which are onerous, burdensome and expensive. And these will involve the lawyers making sure that those technical rules are complied with for the protection of those people who will be subject to an order before they've done anything wrong.

My final point is, as a client, you need to be very committed to doing this and you have to be very willing to ensure that all of those rules are complied with, which will lead to administrative burdens – whether it's setting up a website for giving service of the order, whether it's making sure you have a fully recorded, potentially a full human rights assessment in relation to the decision making and in relation to sometimes very onus trials in relation to service evidence of title.

There's a variety of a list of things that have to be done in order to comply with the technical rules, and there are no shortcuts and you do have to be committed.

00:20:03 David Lee, podcast host

Okay, so Lucie, on the basis of that, it is going to be an onerous commitment. This is not something that clients are necessarily going to want to hear from you. This is going to be really onerous. It's going to be really expensive. It's going to be really technical.

What's your key message?

I'm guessing you're going to build on what Katharine has just said, a client has got to be committed and has got to fully commit if they are looking at one of these injunctions?

00:20:29 Lucie Barnes, partner

Newcomers are a very effective, protective measure where incidents could cause serious operational safety and financial impact, and in situations where waiting for an incident to occur, it would simply be too late.

So I think my closing point would be, they should be a regular discussion point for C-suite executives and stakeholders for businesses where this may apply.

00:21:05 David Lee, podcast host

Okay, great stuff.

Thanks very much indeed to Lucie Barnes and to Katharine Holland for their excellent insights today on newcomer injunctions.

And that was an episode of Podcasts by Brodies where some of the country's leading lawyers and special guests share their insights about a wide range of issues and developments affecting businesses, individuals and organisations across the UK and beyond.

And if you'd like to hear more, you can subscribe to Podcast by Brodies on all your favourite podcast platforms. And for more information and insights, please visit brodies.com.