“Persons unknown” injunctions against future protest action
10 April 2019
In Boyd & Anor v Ineos Upstream Ltd & Ors  EWCA Civ 515, the Court of Appeal handed down a fascinating judgment exploring the tension between the exercise of the rights to freedom of assembly and freedom of expression and the protection of property rights.
The case concerned injunctions ordered against “persons unknown”. In the High Court, the Ineos Group of companies (known for their prominence in the UK shale gas exploration market) had obtained interim injunctions against a collection of as yet unidentifiable defendants. The applications were made to guard against the perceived risk of fracking demonstrations becoming unlawful protests at several sites owned or operated by Ineos.
The injunctions as drafted restrained an apparently comprehensive suite of theoretically unlawful acts of protest by reference to the likely prospective acts committed by a hypothetical defendant. The acts included:
(1) trespass to land (hypothetical D1);
(2) interfering with the Claimant’s private access to the site (hypothetical D2);
(3) interfering with public rights of way – including blocking the highway, slow walking, climbing onto vehicles and unreasonable obstruction (hypothetical D3); and
(4) conspiracy to injure by unlawful means (hypothetical D5). The hypothetical defendants would only become a party in the event that the terms of the order were breached.
Interestingly, in addition to the “persons unknown”, the interim injunction hearing had considered draft orders made against two named Defendants. No interim orders were eventually made against them. However, it was these Defendants who obtained permission to appeal on the basis of their concern about the width of the “persons unknown” orders. The Court of Appeal recognised this peculiarity, noting that
any concern about the locus standi of Mr Boyd and Mr Corré to make submissions to the court has been dissipated by the assistance to the court
which their Counsel had provided (§16). Friends of the Earth also appeared as interveners. The judgment is therefore a fascinating example of pure public interest litigation in the human rights context – the sole issue was the width of the proposed injunctions as compared with the importance of the exercise of the rights in question.
The Court of Appeal held that whilst there was no conceptual or legal prohibition against obtaining an injunction against a “person unknown”, a court should be “inherently cautious” before granting one (§31). This is because it would necessarily be difficult to assess the reach of the prohibition in advance.
Against this backdrop, the Court “tentatively” set out the following necessary conditions for the grant of such relief:
(1) a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
(2) the impossibility of naming the persons who were likely to commit the tort unless restrained;
(3) the possibility of giving effective notice of the injunction and for the method of such notice to be set out in the order;
(4) that the terms of the injunction correspond to the threatened tort and are not so wide that they prohibited lawful conduct;
(5) that the terms are sufficiently clear and precise as to enable persons potentially affected to know what they had not to do;
(6) that the injunction should have clear geographical and temporal limits (§§18-34).
Conditions (4)-(6) were the live issues in this case, in particular with respect to the injunctions made against D3 and D5 (those relating to public rights of way and the supply chain in connection with the tort of conspiracy to cause damage by unlawful means). These were discharged by the Court of Appeal on the basis of their width and lack of clarity in several crucial respects. Ultimately, the court held that it was only when events
have happened which can in retrospect be seen to have been illegal that wide-ranging injunctions of the kind granted against the third and fifth defendants should be granted (§42).
The injunctions against D1 and D2 were however maintained, pending remission to the High Court for reconsideration as to whether interim relief should be granted in the light of s.12(3) of the Human Rights Act and, if the injunctions were to be continued, the appropriate temporal limits.
The potential “chilling effect” on the rights of freedom of expression and lawful assembly of a “persons unknown” injunction, which effectively operates against the world at large until breached, clearly weighed heavily in the balancing act as undertaken by the Court of Appeal.
At paragraph 40 of the judgment, for example, the Court considered whether the injunction relating to obstruction of the highway only prohibited “unreasonable” (i.e. unlawful) obstruction. This was held to be a question of fact and degree which could onlybe assessed in an actual situation, rendering it incapable of definition in an interim injunction granted in advance. The court emphasised that a person faced with such an injunction “may well be chilled into not obstructing the highway at all”.
Further, the court held that it would be wrong to build the concept of “without lawful authority or excuse”into an injunction since an ordinary person exercising legitimate rights of protest
is most unlikely to have any clear idea of what would constitute lawful authority or excuse. If he is not clear about what he can and cannot do, that may well have a chilling effect also.
The risk of stifling potentially lawful protest, in the view of the Court of Appeal, appears to have outweighed the risk of unlawful protest going ahead without prior safeguards being available to a Claimant.
The potential reach of this opinion is significant. The Court of Appeal have markedly curtailed property owners’ ability to protect their interests in advance of any harm being caused. In effectively finding that activities which are only unlawful where a certain threshold of severity is reached, or where a particular intention is required to be proved are inherently unsuitable for the domain of the “persons unknown” injunction, the future scope of such protection appears limited. The breadth of the Court of Appeal’s judgement would appear to make it impossible to render an injunction of the character sought in this case sufficiently clear and precise by clever drafting.
This is in stark contrast to Morgan J’s treatment of the issues in the High Court. Much emphasis was there placed upon the importance of the private property rights held by Ineos and the risk of their being left without protection in the event that protestors chose to act unlawfully (see, for example, §§95, 105, 114 and 142-143). Morgan J was persuaded that the envisaged activities including “slow walking”, “lock ons” and other obstructions would amount to unreasonable obstructions, and that
the protestors are doing much more than expressing their opinions about the undesirability of fracking. They are taking direct action against the fracking operators in an attempt to make them stop their fracking activities (§§109-114).
However, this apparent primacy given to the exercise of the rights of freedom of expression and assembly was not unlimited: the Court of Appeal reserved a clear role for “persons unknown” injunctions despite significantly limiting their utility in practice. The Court explicitly rejected as “too absolutist” the argument of the Second Appellant that “persons unknown” injunctions were invalid since without the sanction of statute or rules of court, the persons unknown would have no opportunity, before the injunction was granted, to raise objections on the basis of possible infringements of their rights protected by Articles 10 and 11 of the ECHR, or indeed any other grounds.
In so doing, the Court of Appeal approved a line of case law supporting the use of the “persons unknown” injunction. Notably, in Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd  1 WLR 1633, where unknown persons had obtained copies of the then unpublished book “Harry Potter and the Order of the Phoenix” and attempted to sell extracts of them to various newspapers, the trial judge (Sir Andrew Morritt V-C) held that it was not material that the description of persons unknown might apply to no-one and made the order against the person or persons who had offered the newspapers copies of the book and the person or persons who had physical possession of a copy of it. Similarly, in Hampshire Waste Services Ltd v Intended Trespassers Upon Chineham Incinerator Site  Env LR 196, an order was granted against persons entering or remaining on certain waste sites without the consent of the Claimants (Hampshire Waste) in connection with the “Global Day of Action against Incinerators”.
In their forceful rejection of the idea that such injunctions can be applied to a wide range of future conduct which may be unlawful, but depending on its facts, may not be, the Court of Appeal have made clear that this line of case law is only to be deployed in limited circumstances. It therefore appears that the future application of “persons unknown” injunctions in the environmental law context, at least where rights to freedom of expression and assembly are in focus, has been constrained. A greater margin of protection is to be afforded to those exercising their rights to lawfully assemble and express their views, and perhaps, to those pushing at their boundaries.