Trespass: obtaining injunctions against “persons unknown”

18 Oct 2018

In recent years there have been a spate of trespass cases involving so-called “urban explorers”. Broadly, a group of individuals, having breached security measures, gain access to particular (often iconic) sites or buildings and record their activities, which are then posted onto social media. The legal and security concerns that arise from these activities are therefore profound but not necessarily new. Sporting venues have often been subject to this type of activity. Further instances of trespass involve those organising and attending illegal raves.

However, it is often the case that those taking part in these activities are unidentifiable or untraceable. What then can an occupier of land do to protect its interest against such activities?

In broad terms, an occupier’s interest in land entitles the exclusion of all other persons. Generally, going onto land without permission constitutes a trespass that is actionable.

That point was reiterated in Patel and Patel v WJ Smith (Eziot) Ltd and Shyama Manufacturing Co Ltd (1987) 1 WLR 853 where Balcombe LJ (at 5H to 6B) referred to the principle in the following way:

“It seems to me that, first, prima facie a landowner, whose title is not in issue, is entitled to an injunction to restrain trespass on his land whether or not the trespass harms him.”

This was the issue at the heart of the claimant’s case in Canary Wharf Investments Ltd and Others v Brewer and Others [2018] EWHC 1760 and a number of cases that followed it.

Members of the public have a licence to enter the Canary Wharf estate in particular, the ground floor and various other parts of buildings on the estate. However, that licence does not permit entry into emergency or service lifts, or allow scaling of the external structure of buildings. Clearly, the licence of any person entering restricted parts of the estate would be treated as revoked; such a breach would expose the estate and other lawful visitors to various risks.

In Canary Wharf Investments Ltd, proceedings were brought against a number of named and other unidentified defendants that had gained access to various restricted parts of the estate (through security doors and service lifts) posing as people having legitimate authority to do so. Their purpose was to record their illicit activities and upload these onto social media.

The claimant’s application for a quia timet injunction came before Warby J, who identified the matters that fell to be considered as:

  • Whether an injunction was required.
  • The terms of any such injunction.
  • The proportionality of such an injunction against unknown persons.

There was little doubt that an injunction was required. The named defendants were willing to give undertakings not to repeat the incursions but it was clearly open to others to carry out the same activities again. The terms of the injunction needed therefore to be sufficiently wide to preclude those potential activities and to apply to those whose identities were unknown.

As Warby J made clear (reminding himself of what was said in South Cambridgeshire v Persons Unknown [2004] EWCA Civ 1280):

“A landowner in possession is entitled to an injunction to restrain trespass, whether or not the trespass causes damage … a quia timet injunction to restrain trespass will usually if not invariably be justified, so long as the claimants establish that there is a substantial risk of trespass by the defendants. Difficulties with enforcement do not justify refusing an injunction. Injunctions must be so framed, of course, to ensure that they do not prevent lawful activity, but injunctions to restrain trespass not only against named individuals but also against persons unknown, provided they are properly defined, are appropriate and permissible.”

That prima facie test applies in “normal circumstances”, but a defendant could neuter the entitlement to an injunctive remedy by showing that they had an interest in possession or occupation, or by establishing some exceptional ground as, for example, occurred in Behrens v Richards [1905] 2 Ch 614.

There were lingering doubts about the court’s jurisdiction to issue such an injunction and about its enforcement against unknown persons, but these have now been dispelled. Jurisdiction arises where there is specific identification of a person or a group engaged in a trespass and there is substantial risk of damage to the occupier’s interest. Furthermore, the test for grant of an injunction had an objective element. In Hampshire Waste Services Ltd v Persons Unknown [2003] EWHC 1738, Sir Andrew Morritt VC, rejecting the suggestion that any potential defendant to a claim in trespass could properly be identified by reference to the “intention” of that unknown person, stated:

“the two points are that it seems to me to be wrong that the description of the defendant should involve legal conclusion such as is implicit in the use of the word “trespass”. Similarly, it seems to me to be undesirable to use a description such as “intending to trespass” because that depends on the subjective intention of the individual which is not necessarily known to the outside world and in particular to the claimants, and is susceptible of change.”

The notion that difficulties of enforcement of such an order meant that the order should not be granted, was soundly rejected.

This was the approach followed in Chelsea Football Club Plc v Brewer [2018] EWHC 1424. Various instances of trespass onto the club’s facilities had taken place in September and October 2017. The court granted an injunction against six known individuals as well as persons unknown, prohibiting their entry into the stadium at Stamford Bridge and the club’s training ground in Cobham. The court made it clear that it had:

“jurisdiction to grant injunctive relief against a class of defendants named only by description.”

In the circumstances, and consistent with the approach in the Hampshire case, any such order:

“… made against persons known ought to describe the defendants as clearly as possible and not by some subjective intention they may have formed or some legal concept.”

Further detailed consideration of these issues was given by Marcus Smith J in Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch). The claimant owned the former Tetley Brewery site in Leeds. There had been a number of incidents of trespass onto the site and, in 2018, unknown persons had triggered the alarms and illegal raves had taken place in empty buildings on the site. Given the trend for such sites to also attract fly-tippers as well as illegal raves, the claimant wished to take proactive steps to prevent further instances of trespass. It had installed what it considered to be rigorous security measures. There were no particular named individuals identified. A question arose whether jurisdiction existed to grant an injunction in such circumstances. The answer was of course a resounding yes. The CPR provided three routes by which an unnamed and/or unknown person could become a party to such proceedings. These were:

  • Where the particular person was identified but the name was not known.
  • Where a person was part of a fluctuating class or group of persons some of whom were unknown (as was the case in the Canary Wharf and Chelsea cases).
  • Where the identity of the defendant is defined by likely prospective acts of infringement of the order the court was being invited to make.

The instant case fell into that final category. A currently unknown and unidentified person would not become party to the injunctive proceedings unless and until they did an act that was prohibited by the injunction. Marcus Smith J stated at paragraph 24:

“aside from the fact that the making of such orders is now settled practice, provided the order is clearly enough drawn … it actually works extremely well within the framework of the CPR. Until an act of infringing the order is committed, no one is party to the proceedings. It is the act of infringing the order makes the infringer a party.”

Quia timet injunctions are therefore a perfect remedy for owners and occupiers of property that fear there will be trespass and where there is substantial risk to their interests. Marcus Smith J considered the requirements of the two-stage test that had to be satisfied for the grant of such an injunction. First, the claimant needed to show there was a strong probability that without the prohibition of an injunction the defendant would act in breach of the claimant’s rights. Secondly, that were such breach to take place there would be grave and irreparable damage to the claimant, even where prompt action were taken to prevent further breach and the quantum of damages would be insufficient to compensate the claimant.

These recent cases demonstrate that, where the clear guidance in Vastint Leeds is followed, the court will likely be unhesitating in granting the extensive and broader injunctive protection landowners seek against those unnamed trespassers. It is a sound and practical step that will give confidence to claimant occupiers.    This is so whether the claim is against publicity- or thrill-seeking urban tourists (as in Canary Wharf Investments Ltd) or those engaged in other illicit activities, as was the case in Vastint Leeds itself.

This article was first published in Practical Law’s Property Column.


Karl King

Karl King

Call: 1985


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