“Newcomer” Injunctions—Quia Timet Plus

Louisiana Law Review Volume 85 Number 3 Spring 2025 Article 7 7-17-2025 “Newcomer” Injunctions—Quia Timet Plus David Capper Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev Repository Citation David Capper, “Newcomer” Injunctions—Quia Timet Plus, 85 La. L. Rev. (2025) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol85/iss3/7 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact . “Newcomer” Injunctions—Quia Timet Plus David Capper* Introduction .................................................................................. 823 I. Protester Cases ............................................................................. 826 II. Wolverhampton City Council v. London Gypsies & Travellers ...................................................... 829 Conclusion.................................................................................... 835 INTRODUCTION Quia timet1 injunctions are an established weapon in the courts’ arsenal of remedies to deal with potential invasions of the claimant’s legal rights.2 The typical scenario is that the defendant is engaging in activity that likely presents a significant risk of tortious interference with the claimant’s rights. Instead of waiting for the wrong to occur and seeking an injunction to restrain a reoccurrence, the claimant may apply for a precautionary injunction to restrain any wrong from being committed. Professor Berryman has described precautionary injunctions as “the legal expression of the aphorism ‘an ounce of prevention is worth a pound of cure.’”3 There is no formulaic test for granting these injunctions. In the principal cases, courts have emphasized the likelihood of the wrong being committed and the probable extent of the damage if it occurs.4 Courts do not require that the invasion of the claimant’s rights appears to be Copyright 2025, by DAVID CAPPER. * Professor of Civil Procedure and Remedies, Queen’s University Belfast. 1. English courts prefer the plain English word “precautionary” to describe these injunctions today. See Barking & Dagenham LBC v. Persons Unknown [2022] EWCA (Civ) 13, [8], [125], [126], [2022] 2 WLR 946, (Sir Geoffrey Vos MR) (Eng.). 2. Quia Timet, BLACK’S LAW DICTIONARY (12th ed. 2024) (“because he fears”). 3. JEFFREY BERRYMAN, THE LAW OF EQUITABLE REMEDIES 293 (Irwin Law 3d ed. 2023). 4. Redland Bricks Ltd. v. Morris [1970] AC 652 (HL), [1969] 2 WLR 1437 (Eng.); Hooper v. Rogers, [1975] Ch (Ch App.) 43, [1974] 3 WLR 329 (Eng.); Islington LBC v. Elliott, [2012] EWCA (Civ) 56 (Eng.). 824 LOUISIANA LAW REVIEW [Vol. 85 imminent.5 As Berryman points out, a court should not act prematurely because this might, among other things, stifle innovation.6 This Article discusses two typical features of the precautionary injunctions: first, they are usually granted against persons unknown, and second, a claimant’s well-founded fear of an invasion of his or her rights is not necessarily immediate. Though outside this Article’s scope, a certain kind of persons unknown injunction concerns anonymous blackmailers who contact the claimant through a website, email address, or mobile telephone number threatening, for example, to hack into the claimant’s computer system and extract vast quantities of confidential information unless the claimant pays a very large ransom.7 In Bloomsbury Publishing Group Ltd. v. News Group Newspapers Ltd., Sir Andrew Morritt Vice-Chancellor authoritatively decided that so long as an interim injunction could be brought to the attention of the defendant, that party did not have to be named.8 An injunction to restrain unknown individuals from this kind of threatened conduct can be served on the medium through which the anonymous defendant contacted the claimant.9 It should be emphasized at this stage that, unlike the usual precautionary injunction, no prior notice of the injunction application is given to anyone.10 The applicant does not know the identity of the person to whom prior notice could be given. The court’s best remedy is ensuring it brings the injunction to the attention of the persons against whom it is directed. In this respect, the court order is very much like an ex parte injunction application. This Article concerns persons unknown injunctions granted against “newcomers.”11 It focuses on newcomer persons unknown injunctions in the common law jurisdictions of the United Kingdom, namely England 5. Hooper, [1975] Ch (Ch App.) 43, [49] (“imminent’ means “not premature”) (Russell LJ). 6. BERRYMAN, supra note 3, at 296–97. 7. LJY v Persons Unknown, [2017] EWHC 3230 (QB), [2018] EMLR 19 (Eng.). 8. Bloomsbury Publ’g Grp. Ltd. v. News Grp. Newspapers Ltd., [2003] EWHC (Ch) 1205, [2003] 1 WLR 1633 (Eng.). 9. LJY, [2017] EWHC (QB) 3230 (mobile telephone); PML v. Persons Unknown, [2018] EWHC (QB) 838, (Eng.) (email); Ince Grp. PLC v. Persons Unknown, [2022] EWHC (QB) 808, (Eng.) (email); Armstrong Watson LLP v. Persons Unknown, [2023] EWHC (KB) 762, [2023] 4 WLR 41 (Eng.) (email); Osbourne v. Persons Unknown, [2023] EWHC (KB) 2974, (Eng.) (non-fungible token with embedded hyperlinks). 10. This is because prior notice would likely result in the threat being carried out. 11. For persons unknown injunctions see DAVID CAPPER, INJUNCTIONS IN PRIVATE LAW paras 5.117–169 (2024). 2025] “NEWCOMER” INJUNCTIONS—QUIA TIMET PLUS 825 and Wales and Northern Ireland. Two typical examples of this phenomenon are injunctions to restrain travellers12 from illegally camping on local authority land and injunctions against large groups of people protesting against what they see as environmentally undesirable activities, such as fracking and using fossil fuels.13 With respect to “traveller” injunctions, the land may be free from any illegal encampment when the local authority applies for the injunction, but past experience shows that groups of travellers are likely to camp there at some time. Even where future encampment does not seem immediately likely, can the local authority seek an injunction to restrain illegal encampment in the future? The “newcomer” feature of protester injunctions is somewhat different. Experience may show that protesters are likely to attempt to obstruct activity that a landowner intends to commence on his or her land in the near future. But protests may be going on at the time of the application for the injunction, and the group of protesters is likely changing on a daily basis. Can the claimant get an injunction to restrain people who join the protests after the injunction is granted from engaging in the unlawful conduct—trespass, nuisance, harassment—the injunction restrains? The decision of the United Kingdom Supreme Court in Wolverhampton City Council v. London Gypsies & Travellers was a traveller inju (...truncated)