128. This court is not of course bound to consider the matter, as was the Master of the Rolls, as a question of potentially binding precedent. We have the refreshing liberty of being able to look at the question anew, albeit constrained (although not bound) by the ratio of relevant earlier decisions of this court and of its predecessor. We conduct that analysis in the following paragraphs. While we have no reason to doubt the efficacy of the concept of self-identification as a defendant as a means of dealing with disobedience by a newcomer with an injunction, the propriety of which is not itself under challenge (as it was not in Gammell), we are not persuaded that self-identification as a defendant solves the basic problems inherent in granting injunctions against newcomers in the first place. 129. The Gammell solution, as we have called it, suffers from a number of problems. The most fundamental is that the effect of an injunction against newcomers should be addressed by reference to the paradigm example of the newcomer who can be expected to obey it rather than to act in disobedience to it. As Lord Bingham observed in South Bucks District Council v Porter (cited at para 65 above) at para 32, in connection with a possible injunction against Gypsies living in caravans in breach of planning controls, “[w]hen granting an injunction the court does not contemplate that it will be disobeyed”. Lord Rodger cited this with approval (at para 17) in the Meier case (para 67 above). Similarly, Lady Hale stated in the same case at para 39, in relation to an injunction against trespass by persons unknown, “[w]e should assume that people will obey the law, and in particular the targeted orders of the court, rather than that they will not.” 130. A further problem with the Gammell solution is that where the defendants are defined by reference to the future act of infringement, a person who breaches the order will, by that very act, become bound by it. The Court of Appeal of Victoria remarked, in relation to similar reasoning in the New Zealand case of Tony Blain Pty Ltd v Splain [1993] 3 NZLR 185, that an order of that kind “had the novel feature – which would have appealed to Lewis Carroll – that it became binding upon a person only because that person was already in breach of it”: Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd [1998] 4 VR 143, 161. 131. Nevertheless, a satisfactory solution, which respects the procedural rights of all those whose behaviour is constrained by newcomer injunctions, including those who obey them, should if possible be found. The practical need for such injunctions has been demonstrated both in this jurisdiction and elsewhere: see, for example, the Canadian case of MacMillan Bloedel Ltd v Simpson [1996] 2 SCR 1048 (where reliance was placed at para 26 on Attorney General v Times Newspapers Ltd as establishing the contra mundum effect even of injunctions inter partes), American cases such as Joel v Various John Does 499 F Supp 791 (1980), New Zealand cases such as Tony Blain Pty Ltd v Splain (para 130 above), Earthquake Commission v Unknown Defendants [2013] NZHC 708 and Commerce Commission v Unknown Defendants [2019] NZHC 2609, the Cayman Islands case of Ernst & Young Ltd v Department of Immigration 2015 (1)
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