Pokémon Go has taken the world by storm in recent months. Headlines around the world have reported instances of people walking into moving traffic, walking off cliffs, phone thefts and trespass, the list goes on.
Carl Csukas is a Partner at The Wilkes Partnership in Birmingham who specialises in Commercial Landlord and Tenant litigation, property related professional negligence claims, contractual issues in property transactions and disputes relating to rights over and the ownership of land.
The legal context is that:
- In the main traditional civil law remedies in England and Wales have to be directed towards identifiable individuals; and
- The prime cause of action will be trespass, but nuisance may also assist.
What if there has already been a trespass?
If the trespasser has caused damage to property, a claim for monetary damages can be brought. However, in order to issue proceedings you need to be able to identify the trespasser and know where they can be served with proceedings. Will they have money to pay any damages awarded? Will they be a minor in any event? Issuing proceedings may just not be practical, possible or commercial.
An injunction may be obtained to prevent a named individual that has trespassed from trespassing again. If obtained an injunction can be a powerful remedy as a further trespass by the individual subject to the order will be a contempt of court, leaving the trespasser liable to committal to prison and/or a fine.
The reality is that in the world of Pokémon, once the individual has trespassed and got what he or she needs for the purposes of the game, they are not likely to trespass again, so a judge may be unlikely to grant an injunction against an individual if there is little prospect of that individual trespassing again. Further, as with a claim for damages you would still need to be able to identify an individual and know where to serve proceedings.
What if you suspect that there may be a trespass?
An injunction can be obtained in anticipation of a civil wrong such as trespass.
Theory aside, in practice there is unlikely to be any notice that there is going to be a trespass. Here we are talking about random, unknown individuals just wandering on to private land. It is an entirely different situation to one in which a developer of neighbouring land gives notice that it is going to start works that it appears may transgress the boundary and/or cause damage to your property, and you seek an injunction before works commence or in the first few days before the works have progressed far. So there will just not be the time to prepare papers and get to Court.
The law has now developed to allow applications to be made for prohibitory injunctions not just against named individuals but against “persons unknown”, albeit that they form some definable group, such as Pokémon hunters. In the past this has been justifiably used in situations in which large, perhaps sensitive facilities have been threatened by protest groups. It may make some commercial sense to try and make such an application if a valuable commercial site is serially threatened. It will be interesting to see how the Pokémon craze develops and, if any one makes such an application, it will be looked on with favour by the courts.
Practically, what can a landowner do?
- Review site security. Ensure that any security requirements imposed by insurers are being met as if they are not any claim against the policy in respect of damage caused by a trespasser may be declined;
- Ensure that your property is safe. If your land is in an unsafe state, and as a consequence a trespasser is injured, you may face a personal injury claim from the trespasser, to whom you will owe a duty of care.
- Call the police. No doubt the police will be overburdened with reports of Pokémon induced trespass. Many episodes may be brief and easily dealt with without police intervention. But if the trespass has involved criminal damage or could lead to a breach of the peace, or worse an assault, the police may attend to prevent a crime occurring or deal with the aftermath of a criminal act.
It may be that the law will have to develop to meet what is a new phenomenon, or a remedy from an unrelated area of law can be used to provide an interim solution until it does. It will be interesting to see if the craze persists, evolves derivatives, and how the law responds.
If you would like to discuss any of the topics covered in this piece please contact Carl Csukas on 0121 710 5842 or [email protected]