MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
had jurisdiction to grant a contra mundum injunction that restrained newcomers. The judgment concluded with this summary of the decision [238]: “(i) The court has jurisdiction (in the sense of power) to grant an injunction against ‘newcomers’, that is, persons who at the time of the grant of the injunction are neither defendants nor identifiable, and who are described in the order only as persons unknown. The injunction may be granted on an interim or final basis, necessarily on an application without notice. (ii) Such an injunction (a ‘newcomer injunction’) will be effective to bind anyone who has notice of it while it remains in force, even though that person had no intention and had made no threat to do the act prohibited at the time when the injunction was granted and was therefore someone against whom, at that time, the applicant had no cause of action. It is inherently an order with effect contra mundum , and is not to be justified on the basis that those who disobey it automatically become defendants. (iii) In deciding whether to grant a newcomer injunction and, if so, upon what terms, the court will be guided by principles of justice and equity and, in particular: (a) That equity provides a remedy where the others available under the law are inadequate to vindicate or protect the rights in issue. (b) That equity looks to the substance rather than to the form. (c) That equity takes an essentially flexible approach to the formulation of a remedy. (d) That equity has not been constrained by hard rules or procedure in fashioning a remedy to suit new circumstances. (e) These principles may be discerned in action in the remarkable development of the injunction as a remedy during the last 50 years. (iv) In deciding whether to grant a newcomer injunction, the application of those principles in the context of trespass and breach of planning control by Travellers will be likely to require an applicant: (a) to demonstrate a compelling need for the protection of civil rights or the enforcement of public law not adequately met by any other remedies (including statutory remedies) available to the applicant. (b) to build into the application and into the order sought procedural protection for the rights (including Convention rights) of the newcomers affected by the order, sufficient to overcome the potential for injustice arising from the fact that, as against newcomers, the application will necessarily be made without notice to them. Those protections are likely to include advertisement of an intended application so as to alert potentially affected Travellers and bodies which may be able to represent their interests at the hearing of the application, full provision for liberty to persons affected to apply to vary or discharge the order without having to show a change of
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