MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
362. Now that the Supreme Court has despatched the legal thicket, in favour of contra mundum ‘newcomer’ injunctions, all of these historic complications can (and in my view should) be swept away. I would also suggest, and it will be the practice I shall adopt in this case, that the contra mundum ‘newcomer’ injunction should be contained in a separate order from any injunction made against parties to the litigation. In that way, the terms of the contra mundum ‘newcomer’ injunction can state, clearly and simply, what acts the Court is prohibiting by anyone . It is particularly important that injunctions that place limits on a citizen’s right to demonstrate must be spelled out in clear and readily comprehensible terms so that there is no inadvertent chilling effect. (5) Contra mundum injunctions as a form of legislation? 363. In LB Barking & Dagenham (the first instance decision in Wolverhampton ), I had expressed the concern that, by granting contra mundum injunctions, the Court risked moving from its constitutionally legitimate role of resolving disputes raised by the parties before it, to an arguably constitutionally illegitimate role of using injunctive powers effectively to legislate to prohibit behaviour generally [260]: “If these established principles and the limits they impose on civil litigation are not observed, the Court risks moving from its proper role in adjudicating upon disputes between parties into, effectively, legislating to prohibit behaviour generally by use of a combination of injunctions and the Court’s powers of enforcement. There may be good arguments - and Mr Anderson QC’s submissions made points that could have been made by all of the Cohort Claimants - as to why such behaviour ought to be prohibited, but it is not the job of the Court, through civil injunctions granted contra mundum , to venture into that territory. Stepping back, the injunction that Wolverhampton was granted, with a power of arrest attached, effectively achieved the criminalisation of trespass on the 60 or so sites covered by the injunction. In a democracy, legislation is the exclusive province of elected representatives. A court operating in an adversarial system of civil litigation simply does not have procedures that are well-suited or designed to prohibit, by injunction, conduct generally…” 364. The view the Court of Appeal took as to the availability of “Persons Unknown” injunctions meant that the point did not arise. 365. The appellants in the Supreme Court did argue that contra mundum orders were objectionable on the ground that they were, effectively, a form of legislation (see [154]). The Supreme Court rejected the argument: [169]We have already mentioned the objection that an injunction of this type looks more like a species of local law than an in personam remedy between civil litigants. It is said that the courts have neither the skills, the capacity for consultation nor the democratic credentials for making what is in substance legislation binding everyone. In other words, the courts are acting outside their proper constitutional role and are making what are, in effect, local laws. The more appropriate response, it is argued, is for local authorities to use their powers to make byelaws or to exercise their other statutory powers to intervene. [170]We do not accept that the granting of injunctions of this kind is constitutionally improper. In so far as the local authorities are seeking to
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