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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> UK Oil & Gas Investments Plc & Ors v Persons Unknown Who Are Protestors...  EWHC 2252 (Ch) (03 September 2018)
Cite as:  EWHC 2252 (Ch)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (CH)
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Judge of the Chancery Division)
| (1) UK OIL & GAS INVESTMENTS PLC (2) KIMMERIDGE OIL & GAS LIMITED (3) MAGELLAN PETROLEUM (UK) LIMITED (4) HORSE HILL DEVELOPMENTS LTD (5) UKOG (GB) LIMITED
- and –
|PERSONS UNKNOWN WHO ARE PROTESTORS AGAINST THE EXPLORATION AND/OR EXTRACTION OF MINERAL OIL OR RELATIVE HYDROCARBON OR NATURAL GAS BY THE CLAIMANT(S) AND WHO ARE INVOLVED IN THE FOLLOWING ACTS OR ANY OF THEM:
|(1) ENTERING OR REMAINING WITHOUT THE CONSENT OF THE CLAIMANT(S) ON LAND AND BUILDINGS SHOWN EDGED RED ON THE PLANS ANNEXED TO THE AMENDED CLAIM FORM ("THE LAND");
|(2) OBSTRUCTING OR INTERFERING WITH THE RIGHTS OF WAY ENJOYED BY THE CLAIMANT(S) AND EACH OF ITS AND THEIR AGENTS, SERVANTS, CONTRACTORS,SUB- CONTRACTORS, & LICENCEES ("THE PROTECTED PERSONS"), OVER THE PUBLIC HIGHWAY AND/OR THEIR ACCESS TO AND FROM THE LAND.
|(3) COMBINING TOGETHER TO COMMIT THE OFFENCES AS DEFINED IN THE ORDER ANNEXED TO THE AMENDED CLAIM FORM ("THE ORDER") WITH THE INTENTION SET OUT THEREIN.
|(4) INTERFERING WITH THE CLAIMANT(S) ECONOMIC INTERESTS BY THE COMMISSION OF UNLAWFUL ACTS AND/OR DIRECT ACTION AS DEFINED IN THE AMENDED PARTICULARS OF CLAIM;
|(5) WATCHING, BESETTING, INTIMIDATING OR ASSAULTING THE CLAIMANT(S) AND EACH OF THE PROTECTED PERSONS.
|(7) MS ANN STEWART
|(8) MS SUE JAMESON
|(9) MS NATASHA DOANE
|(10) MS VICKI ELCOATE
|(11) MS CONSTANCE WHISTON
|(12) MS JACQUI HAMLIN
|(13) FRIENDS OF THE EARTH LIMITED
Ms Stephanie Harrison QC, Mr Stephen Simblet, Mr Tim Baldwin and Mr Owen Greenhall (instructed by Bhatt Murphy) for the Seventh to Twelfth Defendants
Mr Stephen Simblet and Ms Ruth Brander (instructed by Bhatt Murphy) for Friends of the Earth Limited
Hearing dates: 2nd, 3rd, 4th and 5th July 2018
Further written submissions on behalf of the Seventh to Twelfth Defendants and Friends of the Earth Limited: 13th July 2018
Further written submissions on behalf of the Claimants: 17th July 2018
Crown Copyright ©
Mr John Male QC (sitting as a Judge of the Chancery Division) :
(1) The parties and the sites.
(2) Procedural matters.
(3) The Ineos case.
(4) Events at the sites.
(5) The level of recent and current activity at the sites.
(6) The particular causes of action relied upon by the Claimants.
(7) The Human Rights Act 1998.
(8) Use of the persons unknown procedure.
(9) The appropriate tests for injunctive relief.
(10) FOE's concerns, including chilling effect.
(11) Whether I should grant any relief.
(12) Summary and relief.
(1) The parties and the sites
The Broadford Bridge Site
The Horse Hill Site
The Head Office
"Persons unknown who are protestors against the exploration and/or extraction of mineral oil or relative hydrocarbon or natural gas by the Claimant(s) and who are involved in the following acts or any of them".
"(1) Entering or remaining without the consent of the Claimant(s) on land and buildings shown edged red on the plans annexed to the Amended Claim Form ("the Land")."
"(2) Obstructing or interfering with the rights of way enjoyed by the Claimant(s) and each of its and their agents, servants, contractors, sub- contractors, & licensees ("the protected persons"), over the public highway and/or their access to and from the land."
"(3) Combining together to commit the offences as defined in the order annexed to the Amended Claim Form ("the Order") with the intention set out therein".
"(4) Interfering with the Claimant(s) economic interests by the commission of unlawful acts and/or direct action as defined in the Amended Particulars of Claim."
"(5) Watching, besetting, intimidating or assaulting the Claimant(s) and each of the protected persons".
The Seventh to Twelfth Defendants
(2) Procedural matters
(3) The Ineos case
(4) Events at the sites
The Horse Hill Site
"Illegal eviction [at Horse Hill] resisted from 5 am this morning but off site now we will be back."
The Broadford Bridge Site
The Head Office
Summary in relation to events at the sites
(5) The level of recent and current activity at the sites
"This injunction hearing was primarily brought about as a direct result of pronouncements of intended actions. Whether deliberately or inadvertently, these pronouncements effectively gifted the unconventional gas industry the opportunity to seek a far-reaching and chilling injunction.
While I would be the first to applaud direct actions and recognise the sacrifice of those who participate in direct action, I believe the key element is spontaneity and surprise. Sadly, pronouncements of intended action is regarded as an imminent threat and it is very difficult to challenge the industry's request for an injunction."
"Anything happening a bit closer to me. Is Leith Hill still active?" "The sites not but camp is and horse hill will kik [sic] off…soon."
I read this reference to Horse Hill "kicking off soon" as a clear threat that Horse Hill will be targeted.
(6) The particular causes of action relied upon by the Claimants
(7) The Human Rights Act 1998
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the exercise of these rights by members of the armed forces, or the police, or of the administration of the State."
"Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrong-headed and misconceived. Sometimes they betray a kind of arrogance: an arrogance which assumes that spreading the word is always more important than the mess which, often literally, the exercise leaves behind. In that case, firm but balanced regulation may be well justified. In this case there is no substantial factor of that kind. As for the rest, whether or not the AWPC's cause is wrong-headed or misconceived is neither here nor there, and if their activities are inconvenient or tiresome, the Secretary of State's shoulders are surely broad enough to cope."
"As the judge recognised, the answer to the question which he identified at the start of his judgment is inevitably fact sensitive, and will normally depend on a number of factors. In our view, those factors include (but are not limited to) the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protestors, the duration of the protest, the degree to which the protestors occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public."
"…The court considers the following elements important for the assessment of this situation. Firstly, it is undisputed that there were no complaints by anyone, whether individual visitors, judges or court employees, about the alleged obstruction of entry to the court-house by the picket participants. Secondly, even assuming that the presence of several individuals on top of the staircase did restrict access to the entrance door, it is creditable that the applicant diligently complied with the officials' request and without further argument descended the stairs onto the pavement. Thirdly, it is notable that the alleged hindrance was of an extremely short duration. Finally, as a general principle, the court reiterates that any demonstration in a public place inevitably causes a certain level of disruption to the ordinary life, including disruption of traffic, and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by art 11 of the convention is not to be deprived of all substance… Accordingly, the court is not satisfied that the alleged obstruction of passage, especially in the circumstances where the applicant gave evidence of his flexibility and readiness to co-operate with the authorities, was a relevant and sufficient reason for the interference."
(8) Use of the persons unknown procedure
"The claimant sues "Persons Unknown", coupled with descriptive wording referring to two world wide web addresses at which content of which the claimant complains has been published. I shall refer to the defendant as "he", because it seems most likely to be one male individual. It is open to a claimant who cannot identify those responsible for the conduct complained of to sue "Persons Unknown". The principles are identified in Bloomsbury Publishing Group plc v News Group Newspapers Ltd  EWHC 1205 (Ch)  1 WLR 1633. The court must however keep a watchful eye on claims brought against persons unknown to guard against any abuse of the facility to bring claims in this way."
"I consider that the position has now been reached that the procedure adopted by the Claimants in the present case is a course which was open to them. Although the Defendants made detailed submissions calling into question the use of this procedure, the Defendants did not focus on the words of description which were used in this case and did not suggest modifications to the wording adopted by the Claimants."
(9) The appropriate tests for injunctive relief
(a) The test for an interim injunction
"12. Freedom of expression
(1) This section applies if a court is considering whether to grant any relief which, I granted might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied – that the applicant has taken all practicable steps to notify the respondent; or that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(b) Quia timet injunctions
"29. The court has an undoubted jurisdiction to grant injunctive relief on a quia timet basis when that is necessary in order to prevent a threatened of apprehended act of nuisance. But because this kind of relief ordinarily involves an interference with the rights and property of the defendant and may (as in this case) take a mandatory form requiring positive action and expenditure, the practice of the court has necessarily been to proceed with caution and to require to be satisfied that the risk of actual damage occurring is both imminent and real. That is particularly so when, as in this case, the injunction sought is a permanent injunction at trial rather than an interlocutory order granted on American Cynamid principles having regard to the balance of convenience. A permanent injunction can only be granted if the claimant has proved at the trial that there will be an actual infringement of his rights unless the injunction is granted."
"71. It is usually said that there must be proof of imminent physical injury or harm for a quia timet injunction to be granted: Fletcher v Bealey (1885) 28 Ch D 688, 698; Birmingham Development Company Ltd v Tyler  EWCA Civ 859,  BLR 445 at ; Islington London Borough Council v Elliott  EWCA Civ 57,  1 WLR 2375 at . It is possible, however, that that is too prescriptive and that what matters is the probability and likely gravity of damage rather than simply its imminence: Hooper v Rogers  1 Ch 43 at 30; Islington LBC v Elliott at , quoting Chadwick LJ in Lloyd v Symonds  EWCA Civ 511, and at -, ; D. Nolan, 'Preventative Damages' (2016) 132 LQR 68-95.
72. Although the point has not been considered before in the cases I see no reason why, in appropriate circumstances, as in the present case, a claimant should not be able to obtain a final mandatory injunction where the amenity value of the land is diminished by the presence of roots even though there has not yet been any physical damage."
(c) The likely result at trial
(10) FOE's conc erns, in clu din g chilling effect
"…anyone like Friends of the Earth who organises, publicises or promotes a protest in the vicinity of the sites named in the injunction could, if any of the listed activity is carried out by individuals attending the protest, find themselves accused of "instructing, encouraging or combining together" to commit unlawful acts."
"Given that organising, publicising and promoting protest in defence of the environment is central to Friends of the Earth's organisational mission, injunctions couched in such broad terms could have very serious implications for Friends of the Earth's future campaigning activities."
(11) Whether I should grant any relief
Relief in relation to the Head Office
Relief in relation to the Horse Hill and Broadford Bridge Sites
"35 Here arises the practical difficulty of devising a suitable form of words. An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute. An order expressed to restrain publication of "confidential information" or "information whose disclosure risks damaging national security" would be undesirable for this reason."
(12) Summary and relief
"Any other person who knows of this order and does anything for the purpose of helping or permitting the Defendants or any of them to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized."