The latest injunction against HS2 protestors bans nearly everyone anywhere on 170 mile route
7 November 2022
This case involved the application, and grant, of an interim injunction in the “unknown” as well as “known” protester context by Knowles J in the Birmingham District Registry.
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The first claimant was the company responsible for construction HS2, the high speed railway line between London and the North of England via the Midlands, part of which is already under construction. The second claimant was the company responsible for the successful delivery of the HS2 scheme.
A legislative scheme gave the company wide powers to acquire and take temporary possession of land for the purposes of construction and maintenance. This land covers the whole of the proposed HS2 route, and other land providing access.
Both claimants applied for an interim injunction to restrain trespass and nuisance by a large number of defendants who were opposed to the construction of HS2. Some of these defendants were named, most unnamed.
The claimants’ case was that protesters had trespassed on HS2 land and caused a nuisance by disrupting works and obstructing roads and that, unless restrained by injunction, they would continue to do so. They sought an injunction to apply along the whole of the HS2 route, preventing named and unnamed defendants from entering HS2 land, from obstructing or interfering with vehicles entering or leaving the land, and from interfering with perimeter fences or gates. They also sought an order for alternative service of the injunction.
Knowles J was at pains to emphasise, at the outset, that he was not concerned with the rights or wrongs of HS2. He was not “holding a public inquiry”, and it was not for him to agree or disagree with the public’s views on the project. But he also stressed that he was not being “weaponised against the project.
“My task is solely to decide whether the Claimants are properly entitled to the injunction they seek, in accordance with the law, the evidence, and the submissions which were made to me.” [para 15]
There have been many protests against HS2 which have generated litigation in the form of applications by the Claimants for injunctions to restrain groups of known and unknown persons from engaging in activities which were interfereing with HS2’s construction. The citations for the cases can be found in paragraph 24 of Knowles K’s judgment.
Arguments before the Court
The Claimants had to demonstrate trespass and nuisance, and a real and imminent risk of recurrence. They said, in particular, that the protests had on numerous occasions put at risk protesters’ lives and those of others (including the Claimants’ contractors); caused disruption, delay and nuisance to works on the HS2 Land; prevented the Claimants and their contractors and others (including members of the public) from exercising their ordinary rights to use the public highway or inconvenienced them in so doing, eg by blocking access gates.
Further, they argued that the Defendants’ actions amounted to a public nuisance which had caused them particular damage over and above the general inconvenience and injury suffered by the public, including costs incurred in additional managerial and staffing time in order to deal with the protest action, and costs and losses incurred as a result of delays to the HS2 construction programme; and other costs incurred in remedying the alleged wrongs and seeking to prevent further wrongs.
Based on previous experience, and on statements made by protesters as to their intentions, the Claimants maintained they reasonably feared that the Defendants would continue to interfere with the HS2 Scheme along the whole of the route by trespassing, interfering with works, and interfering with the fencing or gates at the perimeter of the HS2 Land and so hinder access to the public highway.
Thus, they said they were entitled to a route wide injunction, extensive though that would be. They drew an analogy with the injunctions granted over thousands of miles of roads in relation to continuing road protests by a group loosely known as “Insulate Britain”.
The Defendants contended that the Claimants had not yet taken possession of much of the HS2 Land and so its possessory right needed to found an action in trespass had not yet crystallised and its application was premature.
They also argued that, notwithstanding the decision of the Court of Appeal in London Borough of Barking and Dagenham v Persons Unknown [2022] 2 WLR 946, to the effect that final injunctions may in principle be made against persons unknown, they remained inappropriate in protest cases in which the Article 10 and 11 rights of the individual must be finely balanced against the rights of the Claimants.
Finally, they submitted that there was not the necessary strong case of a real and imminent danger to justify the grant of a precautionary injunction. They said the Claimant had to establish that there was a risk of actual damage occurring on the HS2 Land that was imminent and real. This, they argued, was not borne out on the evidence, given no work or protests were ongoing over much of the HS2 Land.
The Court’s conclusions
Knowles J rejected the Defendants’ submission that the proposed order prevented lawful protest.
It was established that even the temporary possession powers in the HS2 Acts gave the Claimants sufficient title to sue for trespass.
Although the Convention on Human Rights protects peaceful protest under Articles 10 and 11, the right to property is also a Convention right, protected by Article 1 of the First Protocol. Tresspass is an interference with these A1P1 rights. In a democratic society, Articles 10 and 11 cannot normally justify a person in trespassing on land of which another has the right to possession, just because the defendant wishes to do so for the purpose of protest against government policy. (Warby LJ in Cuciurean v Secretary of State for Transport [2021] EWCA 357, [9(1)]-[9(2)]
Put shortly, Article 10 does not confer a licence to trespass on other people’s property in order to give voice to one’s views.
Nuisance
As for the Claimant’s plea in nuisance, the judge noted that a public nuisance is one which inflicts damage, injury or inconvenience on all the King’s subjects or on all members of a class who come within the sphere or neighbourhood of its operation. Private nuisance is any continuous activitiy or state of afffairs causing a substantial and unreasonable interference with a claimant’s land or his use or enjoyment of that land.
In relation to remedy, the starting point, if not the primary remedy in most cases, will be an injunction to bring the nuisance to an end: Lawrence v Fen Tigers Ltd and others [2014] AC 822, [120]-[124] per Lord Neuberger. In that case his Lordship observed (at para 93) that
the general function of an interim injunction is to ‘hold the ring’ pending final determination of a claim (United States of America v Abacha [2015] 1 WLR 1917). …The general test for the grant of an interim injunction requires that there be at least a serious question to be tried and then refers to the adequacy of damages for either party and the balance of justice (or convenience): American Cyanamid Co v Ethicon Ltd [1975] AC 396. (para 94)
Injunction against persons unknown
Knowles J acknowledged that injunctions against unidentified defendants required caution from the court, and referred to the cases of Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100 and Canada Goose Retail Ltd v Persons Unknown [2020] 1 WLR 2802.
The prohibited acts must correspond to the threatened tort. They may include lawful conduct if, and only to the extent that, there is no other proportionate means of protecting the claimant’s rights
Because the protesters were a rolling and evolving group, there was an unknown and fluctuating body of potential defendants, and the Claimants had defined the unknown defendants by reference to the forms of activity to be restrained. The categories were apt and narrow enough not to capture innocent or inadvertent trespass, and the method accorded with the Canada Goose principles. Further, the terms of the injunction sought complied with the Canada Goose principles. The prohibited acts corresponded as closely as was reasonably possible to the allegedly tortious acts which the claimants sought to prevent, and the terms of the injunction were sufficiently clear and precise to enable persons potentially affected to know what they must not do.
Convention rights
Articles 10 and 11 of the ECHR, which together guaranteed the right to peaceful and lawful protest, were engaged. Although most of the protesters’ activity had taken place on private land (where there was no right to protest) some had spilled over onto the highway and other public land, and the injunction would interfere with the protesters’ right to lawfully protest there. However, that interference was justified: it was prescribed by law, it pursued the legitimate aim of enabling the First Claimant to complete a strategic infrastructure project which Parliament deemed to be in the public interest, there was no less restrictive way of achieving that aim, and the injunction struck a fair balance between the public interest and the rights of the protesters, who had no right to cause the type and level of disruption sought to be restrained by the order DPP v Ziegler [2021] UKSC 23, [2022] A.C. 408, [2021] 6 WLUK 347.
Nothing in the proposed order would prevent the right to conduct peaceful and lawful protest against HS2 (para 195)
One of the questions to be decided was whether the First Claimant as a hybrid public authority could rely on A1P1, in other words be considered a “victim” for the purposes of the Convention. The judge found that the case law on this question favoured the possibility of public authorities enjoying Convention rights, including the jurisprudence of the Strasbourg court.
The claims in trespass and nuisance
The evidence showed many instances of trespass and nuisance along the route: the protesters had engaged in significant violence and criminality, damaged equipment, and obstructed work. They had also created and occupied tunnels beneath the ground, putting their own lives and those of the First Claimant’s staff and contractors at risk. Thus, it was more likely than not that, at trial, the claimants would make out their claims in trespass and nuisance.
The general test to be applied by a court faced with an application for a quia timet injunction at trial was quite clear. The court must be satisfied that the risk of an infringement of the claimant’s rights causing loss and damage is both imminent and real (London Borough of Islington v Elliott 2012] EWCA Civ 56). In this case, the judge found that the Claimants had established that there was an imminent and real risk of the trespass and nuisance continuing, unless restrained. They were therefore entitled to a precautionary injunction. Knowles J was satisfied of this, and that the Claimants had made out their case in trespass and nuisance, and granted the application.
There was no doubt that the First Claimant had sufficient title over all of the HS2 land to bring an action in trespass. The fact that the First Claimant was not yet in actual possession of some of the sites along the route mattered not; actual occupation was not required to establish trespass. The First Claimant merely had to show that it had a better right to possession than did the protesters. Having served the requisite statutory notices, it was entitled to immediate possession of the land along the route and therefore had the better right.
Drawing the matters together and looking at all of the material in terms of the general principles relating injunctions, Knowles J concluded at para 217 that he was
(a) satisfied that it is more likely than not that the Claimants would establish at trial that the Defendants’ actions constitute trespass and nuisance and that they will continue to commit them unless restrained. There is an abundance of evidence that leads to the conclusion that there is a real and imminent risk of the tortious behaviour continuing in the way it has done in recent years across the HS2 Land. I am satisfied the Claimants would obtain a final injunction.
(b) Damages would not be an adequate remedy for the Claimants. They have given the usual undertakings as to damages.
(c)The balance of convenience strongly favours the making of the injunction.
At the end of his judgment, Knowles J addressed the “chilling effect” objection to this inunction. There were safeguards built in; it was of clear geographical and temporal scope. Furthermore, injunctions against defined groups of persons unknown are now commonplace, in particular in relation to large scale disruptive protests by groups of people, and the courts have fashioned a body of law, in order to address the issues which such injunctions can raise, and to make sure they operate fairly.
A longer version of this post will be published in the Journal of Environmental Liability – Law and Practice published by Lawtext Publishing ltd.
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