Wolverhampton City Council & Ors v Persons Unknown & Ors

Under the Senior Courts Act 1981, s 37:

“(1)

The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.”

These applications are - at least in part - for precautionary relief, or in the Latin, quia timet (although Latin is no longer to be used: London Borough of Barking and Dagenham v Persons Unknown [2023] QB 295, [8]), to prevent future car cruising. Cs submit that the evidence clearly shows that this will increasingly happen if not restrained.

The test for precautionary relief is whether there is an imminent and real risk of harm: Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100, [34(1)] (Court of Appeal) and the first instance decision of Morgan J: [2017] EWHC 2945 (Ch), [88]. See also High Speed Two (HS2) Limited v Four Categories of Persons Unknown [2022] EWHC 2360 (QB), [99]-[101]. ‘Imminent’ in this context simply means ‘not premature’: Hooper v Rogers [1975] Ch 43, 49. I am satisfied that these applications are not premature.

As I have said, the claims are principally put on the basis that car cruising is a public nuisance, namely, a nuisance which materially affects the reasonable comfort and convenience of life of a class of His Majesty's subjects: Attorney General v PYA QuarriesLtd [1952] QB 169, 184.

Cs have various powers enabling them to bring proceedings to restrain such a nuisance. One of these powers is the Local Governments Act 1972, s 222. This provides that a local authority may bring civil proceedings in its own name where it considers it, ‘…expedient for the promotion or the protection of the interests of the inhabitants of its area.’

As to this power, in Stoke-On-Trent City Council v B&Q (Retail) Ltd [1984] 1 Ch 1, 23B, Lawton LJ observed that it is:

“In everyone's interest, and particularly so in urban areas, that a local authority should do what it can within its powers to establish and maintain an ambience of a law-abiding community and what should be done for this purpose is for the local authority to decide.”

As I have said, much of what Cs seek to restrain amounts to criminal offences. In City of London Corporation v Bovis Construction Ltd (No 2) [1992] 3 All ER 697, the Court of Appeal considered an injunction granted under s 222 to tackle nuisance caused by noise, which on the facts was also a criminal offence. Bingham LJ (as he then was) said this at p714:

“It is made plain by the highest authority that the jurisdiction to grant an injunction in support of the criminal law is exceptional and one of great delicacy to be exercised with caution (Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at 83, 91, 99, 117, [1978] AC 435 at 481, 491, 500, 521). Where, as in the present case, Parliament has shown a clear intention that the criminal law shall be the means of enforcing compliance with a statute, the reasons for such caution are plain and were fully explained by their Lordships in Gouriet. The criminal law should ordinarily be pursued as the primary means of enforcement. The case law shows that the archetypal case in which this jurisdiction is exercised is one in which a criminal penalty has in practice proved hopelessly inadequate to enforce compliance …

…

The guiding principles must I think be:

(1)

that the jurisdiction is to be invoked and exercised exceptionally and with great caution …;

(2)

that there must certainly be something more than mere infringement of the criminal law before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area: see [Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] AC 754 at 767B, 776C], and Wychavon District Council v Midland Enterprises (Special Events) Ltd (1986) 86 LGR 83, 87; and

(3)

that the essential foundation for the exercise of the court's discretion to grant an injunction is not that the offender is deliberately and flagrantly flouting the law but the need to draw the inference that the defendant's unlawful operations will continue unless and until effectively restrained by the law and that nothing short of an injunction will be effective to restrain them …”

Cs also have a duty under the Highways Act 1982, s 130, to assert and protect the rights of the public to the use and enjoyment of the highway, which is reinforced in s 130(5) by the power to institute proceedings. In addition, they have a power under the Localism Act 2011, s 1, to do anything that individuals with full capacity generally may do in any way whatever and unlimited by the existence of any other power of the authority which to any extent overlaps with thqt general power.

Based on the evidence provided by Cs, I am satisfied not only that those who engage in car cruising are deliberately, intentionally and flagrantly flouting the law, but that they will continue to do so unless and until effectively restrained by an injunction, and that nothing short of an injunction will be effective to restrain them. I take fully on board Bingham LJ’s principles. However, I am satisfied that they are met in this case.

This conclusion is supported by the observation of Bean LJ in Sharif at [42] about the 2016 Birmingham car cruising injunction to the effect that:

“Judge Worster and Judge McKenna were well entitled to conclude, in the words of Bingham LJ's third criterion in Bovis, that car cruising in the Birmingham area would continue unless and until effectively restrained by the law, and that nothing short of an injunction would be effective to restrain them. I regard this is a classic case for the granting of an injunction."

It is a feature of these applications that they seek borough-wide injunctions. This was a point considered by Hill J. Suffice to say I adopt the analysis in [56]-[57] of her judgment.

So far as the injunctions infringe or may infringe Ds’ Convention right of freedom of assembly under Article 11(1), I am satisfied that this is a necessary and proportionate restriction on that right whose purpose is (per Article 11(2)): maintenance of public safety; the prevention of disorder and crime; and the protection of the rights and freedoms of others.

I now come to the aspect of Cs’ application which has been most affected by the developments in the law since 2021 that I referred to earlier.

It is necessary for me to consider whether it is appropriate to grant an injunction in the terms sought against groups of unknown persons including those whose identities were not known or knowable. This requires consideration of the principles set out by the Supreme Court in the Wolverhampton Travellers case. These have been applied in a number of subsequent ‘persons unknown’ or ‘newcomer’ injunction cases including Jockey Club Racecourses Ltd v Persons Unknown [2024] EWHC 1786 (Ch); Exolum Pipeline System Ltd and others v Persons Unknown [2024] EWHC 1015 (KB); Valero Energy Ltd v Persons Unknown [2024] EWHC 134 (KB); and Multiplex Construction Europe Ltd v Persons Unknown [2024] EWHC 239 (KB).

In Wolverhampton Travellers, under the heading ‘The problem’, Lord Reed, Lord Briggs and Lord Kitchin (with whom Lord Hodge and Lord Lloyd-Jones agreed) described the context of the case as follows:

“1.

This appeal concerns a number of conjoined cases in which injunctions were sought by local authorities to prevent unauthorised encampments by Gypsies and Travellers. Since the members of a group of Gypsies or Travellers who might in future camp in a particular place cannot generally be identified in advance, few if any of the defendants to the proceedings were identifiable at the time when the injunctions were sought and granted. Instead, the defendants were described in the claim forms as ‘persons unknown’, and the injunctions similarly enjoined ‘persons unknown’. In some cases, there was no further description of the defendants in the claim form, and the court’s order contained no further information about the persons enjoined. In other cases, the defendants were described in the claim form by reference to the conduct which the claimants sought to have prohibited, and the injunctions were addressed to persons who behaved in the manner from which they were ordered to refrain.

2.

In these circumstances, the appeal raises the question whether (and if so, on what basis, and subject to what safeguards) the court has the power to grant an injunction which binds persons who are not identifiable at the time when the order is granted, and who have not at that time infringed or threatened to infringe any right or duty which the claimant seeks to enforce, but may do so at a later date: ‘newcomers’, as they have been described in these proceedings.

3.

Although the appeal arises in the context of unlawful encampments by Gypsies and Travellers, the issues raised have a wider significance. The availability of injunctions against newcomers has become an increasingly important issue in many contexts, including industrial picketing, environmental and other protests, breaches of confidence, breaches of intellectual property rights, and a wide variety of unlawful activities related to social media. The issue is liable to arise whenever there is a potential conflict between the maintenance of private or public rights and the future behaviour of individuals who cannot be identified in advance. Recent years have seen a marked increase in the incidence of applications for injunctions of this kind. The advent of the internet, enabling wrongdoers to violate private or public rights behind a veil of anonymity, has also made the availability of injunctions against unidentified persons an increasingly significant question. If injunctions are available only against identifiable individuals, then the anonymity of wrongdoers operating online risks conferring upon them an immunity from the operation of the law.”

I have taken the following summary of the effect of the Wolverhampton Travellers case from the judgment of Sir Anthony Mann (sitting as a judge of the High Court) in the Jockey Club case which, at the time of writing, is the most recent application of Wolverhampton I have been able to find. Although this judgment was given after the hearing before me, it does not state any new principles but contains a helpful up to date summary of the relevant pre-existing jurisprudence as it was at the date of that hearing.

The Supreme Court analysed the jurisdiction to grant injunctions against newcomers, and found that injunctions which in other contexts would be regarded as ‘final’ (as opposed to interim) were not in fact properly so regarded but were of a distinct kind. After an extensive review of authority the Court held:

“139 … In sympathy with the Court of Appeal on this point we consider that this constant focus upon the duality of interim and final injunctions is ultimately unhelpful as an analytical tool for solving the problem of injunctions against newcomers. In our view the injunction, in its operation upon newcomers, is typically neither interim nor final, at least in substance. Rather it is, against newcomers, what is now called a without notice (ie in the old jargon ex parte) injunction, that is an injunction which, at the time when it is ordered, operates against a person who has not been served in due time with the application so as to be able to oppose it, who may have had no notice (even informal) of the intended application to court for the grant of it, and who may not at that stage even be a defendant served with the proceedings in which the injunction is sought. This is so regardless of whether the injunction is in form interim or final.”

This has consequences as to the requirements:

“142.

Recognition that injunctions against newcomers are in substance always a type of without notice injunction, whether in form interim or final, is in our view the starting point in a reliable assessment of the question whether they should be made at all and, if so, by reference to what principles and subject to what safeguards. Viewed in that way they then need to be set against the established categories of injunction to see whether they fall into an existing legitimate class, or, if not, whether they display features by reference to which they may be regarded as a legitimate extension of the court's practice.”

The case before the Supreme Court involved Travellers, but while that context informed some of the requirements that the Court indicated should be fulfilled before a newcomer injunction is granted, most of its requirements are equally applicable to other types of cases including protest cases (of which there are now a number), and the case before me:

“167.

These considerations lead us to the conclusion that, although the attempts thus far to justify them are in many respects unsatisfactory, there is no immoveable obstacle in the way of granting injunctions against newcomer Travellers, on an essentially without notice basis, regardless of whether in form interim or final, either in terms of jurisdiction or principle. But this by no means leads straight to the conclusion that they ought to be granted, either generally or on the facts of any particular case. They are only likely to be justified as a novel exercise of an equitable discretionary power if:

(i)

There is a compelling need, sufficiently demonstrated by the evidence, for the protection of civil rights (or, as the case may be, the enforcement of planning control, the prevention of anti-social behaviour, or such other statutory objective as may be relied upon) in the locality which is not adequately met by any other measures available to the applicant local authorities (including the making of byelaws). This is a condition which would need to be met on the particular facts about unlawful Traveller activity within the applicant local authority's boundaries.

(ii)

There is procedural protection for the rights (including Convention rights) of the affected newcomers, sufficient to overcome the strong prima facie objection of subjecting them to a without notice injunction otherwise than as an emergency measure to hold the ring. This will need to include an obligation to take all reasonable steps to draw the application and any order made to the attention of all those likely to be affected by it (see paras 226-231 below); and the most generous provision for liberty (ie permission) to apply to have the injunction varied or set aside, and on terms that the grant of the injunction in the meantime does not foreclose any objection of law, practice, justice or convenience which the newcomer so applying might wish to raise.

(iii)

Applicant local authorities can be seen and trusted to comply with the most stringent form of disclosure duty on making an application, so as both to research for and then present to the court everything that might have been said by the targeted newcomers against the grant of injunctive relief.

(iv)

The injunctions are constrained by both territorial and temporal limitations so as to ensure, as far as practicable, that they neither outflank nor outlast the compelling circumstances relied upon.

(v)

It is, on the particular facts, just and convenient that such an injunction be granted. It might well not for example be just to grant an injunction restraining Travellers from using some sites as short-term transit camps if the applicant local authority has failed to exercise its power or, as the case may be, discharge its duty to provide authorised sites for that purpose within its boundaries.”

Later in its judgment, the Court returned to procedural safeguards to give effect to those matters of principle, and set out the following procedural and other matters. I omit some points that are relevant to Traveller cases and which have no counterpart in this case, and adjust others by making appropriate edits:

In Multiplex at[11] et seq, Ritchie J summarised the Wolverhampton Travellers requirements under the following thirteen headings. This was the current case at the time of the hearing before me, and so in the following paragraphs I will set out the reasons why I granted the injunctions by reference to Ritchie J’s headings.

Substantive requirements (there must be a civil cause of action): I explained earlier that the cause of action in these cases is public nuisance.

Sufficient evidence to prove the claim: I am satisfied that there is sufficient evidence to prove the claims as set out above. No defences to the claims have been filed. There have been proven contempts of the earlier injunction.

Whether there is a realistic defence: I do not consider that there is or can be a realistic defence to the claims (and, as I have said, none has been filed). The behaviour which the injunction seeks to restrain is tortious and, in large measure, criminal.

The balance of convenience and compelling justification: in Multiplex, [15], Ritchie J said:

“It is necessary for the Court to find, in relation to a final injunction, something higher than the balance of convenience, but because I am not dealing with the final injunction, I am dealing with an interlocutory injunction against PUs, the normal test applies. Even if a higher test applied at this interlocutory stage, I would have found that there is compelling justification for granting the ex parte interlocutory injunction, because of the substantial risk of grave injury or death caused not only to the perpetrators of high climbing on cranes and other high buildings on the Site, but also to the workers, security staff and emergency services who have to deal with people who do that and to the public if explorers fall off the high buildings or cranes.”

In the case before me, not only is there a risk of grave injury and death, such has actually occurred, as I said earlier.

Whether damages are an adequate remedy: this criterion is plainly not applicable in the present case, where Cs seek to restrain conduct which has caused and is capable of causing considerable non-pecuniary harm to residents in the areas affected.

Procedural requirements relating to the conduct: these are, principally, that: (a) the persons unknown must be clearly identified by reference to the tortious conduct to be prohibited; and (b) there must be clearly defined geographical boundaries.

I am satisfied that these requirements have been fulfilled. While the geographical area concerned is substantial, that is no impediment to an injunction being granted of itself and, indeed, far more extensive injunctions have been granted. Like Hill J, I am satisfied that such an extensive area is necessary given that by its very nature street racing is a mobile activity that has occurred at multiple locations and can relocate easily. The geographical area is clearly outlined in the maps annexed to the injunction.

The terms of the injunction must be clear:the prohibited conduct must not be framed in technical or legal language. In other words, what is being prohibited must be clear to the reader.I am satisfied this requirement is made out.The prohibitions have been set out in clear words.The additional prohibitions that go beyond the interim order (namely those that apply to spectators and organisers) are clear, and the need for such prohibitions is considered below.

The prohibitions must match the pleaded claim(s):I am satisfied that this requirement has been fulfilled.

The geographical boundaries must be clear: there are plans clearly indicating the area covered by the injunction. This condition is therefore satisfied.

Temporal limits/duration:the injunctions are time limited and provision is made for reviews. Furthermore, there is always the right of any person affected to come to court at any time to seek a variation or discharge of the injunction.

Service of the order: this is an especially important condition. I am satisfied that the service provisions contained in the orders (among other things) have been in the past, and will continue to be effective in the future, to bring the injunction to the attention of the public.

The right to set aside or vary: this is explicitly provided for in the injunction.

Review: as I have said, this is explicitly provided for.

There are other matters requiring consideration, as follows.

Traveller Cases: the Supreme Court in the WolverhamptonTravellers case recognised that Travellers are a vulnerable group to whom particular duties are owed (see [190]-[203]). This issue does not arise in the present case.

Convention rights: this can arise in some cases involving, for example, protest and freedom of expression, but they do not arise in the present cases, save in the limited respect I have already dealt with.

Adequacy of existing remedies: this is a more substantial matter requiring consideration. Possible existing or alternative remedies are: (a) criminal law penalties; (b) Public Spaces Protection Orders; (c) local authority byelaws. I will consider each in turn.

Criminal law: Much of the conduct that the injunction seeks to restrain is criminal, for example, dangerous driving. However, the criminal law is reactive and not primarily preventative. The evidence from PC Campbell in Volume 1 in particular conclusively demonstrates that simply relying upon criminal sanctions would not be an adequate response to the problem of car cruising in Cs’ areas.

Public Spaces Protection Orders (PSPO): these are orders made under s 59 of the Anti-social Behaviour, Crime and Policing Act 2014. They were considered in Sharif and rejected as being ineffective. Bean LJ said at [39] that:

“39.

… the evidence in the present case was enough to indicate a PSPO might well be ineffective. Breach of a PSPO is a non-arrestable offence carrying only a financial sanction (whether by prosecution or by service of a fixed penalty notice). As one item of evidence (among many) mentioned by Mr Bird records, ‘a caller complains that the vehicles go when police arrive and simply return when the police have moved on’. There may also be potential difficulties about what does or does not constitute a ‘public space’; how large that public space can be; and whether a PSPO can properly cover the activities of those who organise or advertise street cruises.”

I also accept the evidence of Mr Nagra in his seventh witness statement at [36] et seq, that PSPOs have been considered in the present cases, but the conclusion reached that they were not ‘viable, feasible or practicable’ to combat car cruising.

Byelaws: in light of concerns expressed by the Supreme Court in the Wolverhampton Travellers case (see [209]-[216]), the Cs examined the availability and utility of byelaws in car cruising cases. Again, I accept Mr Nagra’s evidence that they are not a realistic alternative to an injunction for the reasons he gives (seventh witness statement, [32]-[35]).

Spectators etc: the injunctions cover those who gather in order to watch or spectate at car cruising ‘events’. I am satisfied that extending the injunctions to cover these people is appropriate.

PC Campbell’s evidence in his fifth witness statement of 9 February 2024, and his video exhibits in particular, show the effects of large crowds on the driving of the active participants, and the danger they put themselves in. He said at [5]:

“5.

Given the fact that street-cruising involves a large number of vehicles and spectators, it poses a very serious risk to public’s safety not only to the individuals who are often standing both on and off the carriageway watching in very close proximity and encouraging these activities, but also to other road users going about their business. In my experience there is never any kind of stewarding or marshalling of the spectators and again this significantly raises the threat, harm and risk factors relevant to those individuals. The dangers posed have been evidenced on numerous occasions in recent times, whereby 5 individuals have lost their lives due to dangerous driving stemming from illegal street cruising. These fatalities included spectators and drivers who were actively taking part in street cruising.”

At [22], [25]-[26] he said:

“22.

This new Section 222 High Court Street cruising injunction application is requesting spectators to be included within the injunction. I would like to broach this issue with the court to highlight the dangers caused by the attending spectators.

…

25.

I often call street cruising or street racing a spectator sport, in certain areas of the Black Country I have personally witnessed hundreds of spectators standing in very dangerous locations, they can be seen recording the footage on their phones, which later gets posted on the various social media sites. In my experience the more spectators line the streets, roundabouts or junctions the more dangerous I see the driving become. It is clear that the drivers will be encouraged to perform more stunts such as drifting around islands at greater speeds than would have been done without the crowds.

26.

I cannot overstate how dangerous these meets are to spectators. Unfortunately, my concerns became a reality on 20th November 2022. On that evening a street cruising meet was gathered on Oldbury Road, Sandwell, when a street cruiser lost control of his vehicle, crashing into 5 spectators. This collision led to the loss of two young lives, individuals both of whom I personally knew from my involvement in tackling street racing. These two individuals had stood at the side of the road to spectate the racing on that stretch of road. The three other spectators received life changing injuries. Just one moment of madness led to change the lives of so many.”

I do not consider there is any risk that innocent bystanders would be unwittingly caught by the injunction, not least because Cs would need to prove ‘participation’, rather than mere presence, to the criminal standard in order to show a breach of the injunctions. Hence, I do not consider that a dog-walker crossing a car-park, or a pedestrian waiting to cross the road, would be at risk of breaching them. PC Campbell sets out the safeguards which the police will operate in order to ensure that only those properly prima facie in breach of the injunctions will be made subject to committal proceedings by the relevant local authority.

Power of Arrest: I am satisfied that a power of arrest in both cases is appropriate under s 27, Police and Justice Act 2006. I note that spectators are excluded from these.

The Ninth Defendant in the Wolverhampton et al case: for the reasons set out in C’s Skeleton Argument at[54] et seq, I am satisfied that it is appropriate to add her as a Defendant. On 9 January 2024 she was found to have breached the then existing injunction.

It is for these reasons that I granted the injunction and made the other orders I have mentioned.