Injunctions against the unknown

"Urban explorers" stopped in their tracks...

Canary Wharf Investments Ltd & Others v Brewer & Others [2018] EWHC 1760 (QB)

Summary

The High Court has granted an injunction to 69 separate claimants, all of whom sought to prevent "urban explorers" trespassing on their land at Canary Wharf. The injunction was drafted to prevent the would-be trespassers accessing restricted parts of the estate in order to obtain images to post on social media. Importantly, the Court considered it just to grant the injunction against the named defendants as well as "persons unknown", which would potentially criminalise future trespass at the estate. It did so on the basis that this was proportionate and just, in view of the many cases of trespass that had already been logged. The Judge also made it clear that it was not relevant whether harm had been caused to the land or its owners, re-emphasising an important principle in the law of trespass. Nevertheless, in this case, the potential for harm to be caused was evidenced, largely owing to the obvious danger involved.

The facts

This claim was brought by 69 claimants, all holding various freehold and leasehold interests in land at the well-known Canary Wharf estate in London. Canary Wharf comprises many of the tallest buildings in the UK, as well as several construction sites containing cranes and partially complete buildings, thus proving to be a magnet for so-called "urban explorers". While some of the urban-explorers were able to be named as defendants, others were unnamed and joined to the proceedings as "persons unknown".

The claimants alleged that the defendants trespassed in order to "climb on the exterior of tall buildings and cranes and post social media messages and photographs recording their activities". They also described the methods employed by the individuals, who were alleged to evade security by entering as purported lawful visitors, entering restricted areas and climbing onto rooves. It was also argued that such activity could lead to harm not just to the defendants, but also to any persons at Canary Wharf and to the reputation of the estate itself.

The activities of the named defendants had been logged by the claimants and although banning notices had been issued to them, these had all been breached. It was also argued in evidence that the pursuit of urban exploration was growing in the UK, following a global trend on social media. The global element also meant that identifying the individuals in the future would become more difficult, since they could well reside abroad.

Finally, notices had been placed around the estate inviting any "persons unknown" to join as a named defendant, but perhaps unsurprisingly, no one had responded to accept.

Arguments before the Court

Although members of the public enjoy limited licences to access parts of the estate for "lawful and non-disruptive purposes", those rights clearly would not extend to general rights to access restricted areas. The claimants therefore claimed an injunction to prevent further trespass and a separate injunction to force the defendants to deliver up the images/videos they had taken during their escapades.

The applicable law

The Court noted that a landowner in possession is entitled to an injunction to restrain trespass, whether or not the trespass causes damage or harm. As a result, unless there is a defence that the access is in fact lawful, the grant of an injunction will almost always be justified. Potential difficulties with enforcement will not justify refusing an injunction, but it will be important to ensure that the wording of the orders involved only catch unlawful activities.

It should also be noted that injunctions to restrain trespass can be obtained against persons unknown, provided that the scope of the injunctions are "properly defined", "appropriate" and "permissible".

The decision

None of the named defendants had raised any dispute concerning their lack of entitlement to enter the claimants' land and indeed some of them had provided undertakings not to engage in further unlawful activities. The entitlement to an injunction preventing further trespass was therefore clearly justifiable, both in respect of the named and unnamed defendants. It was also proportionate, in view of the unchallenged evidence submitted by the claimants. The Court also ordered injunctions to force the defendants to deliver to the claimants all of the photographs/videos taken during their illegal activities.

As well as granting the injunctions the Court also considered liability for the claimants' costs. It was held that the defendants, even those that had offered undertakings, could have taken steps to avoid the legal proceedings by complying with initial warnings. The undertakings to comply, while right and proper, had come too late to be worthy of special credit. Unsurprisingly, the defendants were therefore held liable for costs.

Our comment

While not a new phenomenon, the "urban exploration" craze is becoming increasingly mainstream. Unfortunately, this is resulting in an increasing number of high profile news stories reporting fatal accidents. The concerns for landowners, both freeholders and leaseholders, are numerous. There are obvious security concerns, risks of injury to the explorers (and potentially anyone in their vicinity), costs of increased security and damage to the reputation of an estate generally. This judgment will therefore give comfort to land owners that have cause to suspect that their land will be targeted, as the scope of the injunction ordered and the sheer number of claimants involved demonstrates that the Courts will take a robust approach to discourage this behaviour.