QB-2019-002737 - [2025] EWHC 2603 (KB)

The legal framework

In Wolverhampton the Supreme Court (Lords Reed, Briggs and Kitchin with whom Lords Hodge and Lloyd-Jones agreed) set out at [225] the need for review of injunctions against persons unknown and the issues to be addressed at such a review. The Supreme Court explained that the review:

“give[s]all parties an opportunity to make full and complete disclosure to the court, supported by appropriate evidence, as to how effective the order has been; whether any reasons or grounds for its discharge have emerged; whether there is any proper justification for its continuance; and whether and on what basis a further order ought to be made.”

The correct approach to review of such injunctions has been considered in a number of first instance cases. Those were comprehensively reviewed by Garnham J in Rochdale who concluded:

In my judgment the correct approach is dictated by the Supreme Court’s judgment in Wolverhampton and in particular in [225]. This is not a “tick box” exercise, but the matters on which evidence should be adduced and argument focused are (i) how effective the order has been; (ii) whether any reasons or grounds for its discharge have emerged; (iii) whether there is any proper justification for its continuance; and (iv) whether and on what basis a further order ought to be made. The parties should give full disclosure, supported by appropriate evidence, directed towards those questions.

There will be cases, such as Basingstoke, where an issue has emerged, whether at the original hearing or in preparation for the renewed hearing, which needs to be addressed expressly at that renewal hearing. Whether that necessitates an expanded renewal hearing or what [the Deputy Judge in Basingstoke & Deane BC v Persons Unknown [2025] EWHC 738 (KB)] calls a de novo hearing will depend on the facts. The position may also be different where the application for further injunctive relief is not made during the currency of the previous order, but after it has expired. But the guiding light will always be the Supreme Court’s judgment in Wolverhampton.”

Finally, I note that, on the basis that in this case the Claimant is seeking an element of precautionary relief, the Court would usually be required to have regard to the multi-factorial test stated by Marcus Smith J in Vastint Leeds BV v Persons Unknown [2019] 4 WLR 2. That test requires these two questions to be answered in the affirmative before injunctive relief could be granted. First, is there a strong possibility that, unless restrained by an injunction, the defendant will act in breach of the claimant’s rights? Secondly, if the defendant did act in contravention of the claimant’s rights, would the resulting harm be so grave and irreparable that, notwithstanding the grant of an immediate interlocutory injunction (at the time of the actual infringement of the claimant’s rights) to restrain further occurrence of the acts complained of, a remedy of damages would be inadequate. However, I respectfully concur with the conclusion of Garnham J at [78] of Rochdale that the test articulated by“Marcus Smith J in Vastint Leeds BV v Persons Unknown [2019] 4 WLR 2 and approved by Sir Geoffrey Vos MR in Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13 has been subsumed into the Wolverhampton framework. The Vastint test, however, provides a useful double check.”