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England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Shell UK Ltd v Persons Unknown (Rev5)  EWHC 1229 (KB) (23 May 2023)
Cite as:  WLR(D) 233,  1 WLR 4358,  EWHC 1229 (KB),  WLR 4358
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Case Number: QB-2022-001241
SHELL UK LIMITED
PERSONS UNKNOWN ENTERING OR REMAINING AT THE CLAIMANT'S SITE KNOWN AS SHELL HAVEN, STANFORD-LE-HOPE (AND AS FURTHER DEFINED IN THE PARTICULARS OF CLAIM) WITHOUT THE CONSENT OF THE CLAIMANT, OR BLOCKING THE ENTRANCES TO THAT SITE
Case Number: QB-2022-001259
SHELL INTERNATIONAL PETROLEUM LIMITED
PERSONS UNKNOWN ENTERING OR REMAINING IN OR ON THE BUILDING KNOWN AS SHELL CENTRE TOWER, BELVEDERE ROAD, LONDON ("SHELL CENTRE TOWER") WITHOUT THE CONSENT OF THE CLAIMANT, OR DAMAGING THE BUILIDNG, OR DAMAGING OR BLOCKING THE ENTRANCES TO THE SAID BUILDING
Case Number: QB-2022-001420
SHELL UK OIL PRODUCTS LIMITED
PERSONS UNKNOWN DAMAGING AND/OR BLOCKING THE USE OF OR ACCESS TO ANY SHELL PETROL STATION IN ENGLAND AND WALES, OR TO ANY EQUIPMENT OR INFRASTRUCTURE UPON IT, BY EXPRESS OR IMPLIED AGREEMENT WITH OTHERS, IN CONNECTION WITH ENVIRONMENTAL PROTEST CAMPAIGNS WITH THE INTENTION OF DISRUPTING THE SALE OR SUPPLY OF FUEL TO OR FROM THE SAID STATION
for the Claimants
Stephen Simblet KC and Owen Greenhall (instructed by Hodge Jones & Allen) for Jessica Branch
Hearing dates: 25 and 26 April 2023
Crown Copyright ©
(1): Whether to permit Ms Branch to make submissions, and if so on what basis and to what extent;
(2): Whether to grant the Claimant in the petrol stations claim permission to amend the description of the Persons Unknown Defendants;
(3): Whether to extend the three injunctions for up to a further year in the manner sought by the Claimants;
(4): Whether to grant the Claimants permission to serve any order and ancillary documents by alternative means; and
(5): Whether to grant the Claimant in the petrol stations claim its application for a third party disclosure order against the Commissioner of Police of the Metropolis ("the Commissioner").
The background to the May 2022 injunctions
The petrol stations
"18. Petrol is highly flammable. Ignition can occur not just where an ignition source is brought into contact with the fuel itself, but also where there is a spark (for example from static electricity or the use of a device powered by electricity) in the vicinity of invisible vapour in the surrounding atmosphere. Such vapour does not disperse easily and can travel long distances. There is therefore close regulation…
19. The use of mobile telephones on the forecourt (outside a vehicle) is prohibited for that reason. The evidence shows that at the protests on 28 April 2022 protestors used mobile phones on the forecourts to photograph and film their activities. Further, as regards the use of hammers to damage pumps, Mr Austin says: "Breaking the pump screens with any implement could cause a spark and in turn potentially harm anyone in the vicinity. The severity of any vapour cloud ignition could be catastrophic and cause multiple fatalities. Unfortunately, Shell Group has tragically lost several service station employees in Pakistan in the last year when vapour clouds have been ignited during routine operations." I was not shown any positive evidence as to the risks posed by spray paint, glue or other solvents in the vicinity of fuel or fuel vapour, but I was told that this, too, was a potential cause for concern."
The terms of the injunctions
"2…the Defendants must not do any of the acts listed in paragraph 3 of this Order in express or implied agreement with any other person, and with the intention of disrupting the sale or supply of fuel to or from a Shell Petrol Station.
3. The acts referred to in paragraph 2 of this order are:
3.1. blocking or impeding access to any pedestrian or vehicular entrance to a Shell Petrol Station or to a building within the Shell Petrol Station;
3.2. causing damage to any part of a Shell Petrol Station or to any equipment or infrastructure (including but not limited to fuel pumps) upon it;
3.3. operating or disabling any switch or other device in or on a Shell Petrol Station so as to interrupt the supply of fuel from that Shell Petrol Station, or from one of its fuel pumps, or so as to prevent the emergency interruption of the supply of fuel at the Shell Petrol Station;
3.4. affixing or locking themselves, or any object or person, to any part of a Shell Petrol Station, or to any other person or object on or in a Shell Petrol Station;
3.5. erecting any structure in, on or against any part of a Shell Petrol Station;
3.6. spraying, painting, pouring, depositing or writing any substance on to any part of a Shell Petrol Station.
3.7. encouraging or assisting any other person do any of the acts referred to in sub-paragraphs 3.1 to 3.6."
"21. Some of the conduct referred to in paragraph 3 is, in isolation, potentially innocuous ("depositing… any substance on… any part of a Shell Petrol Station" would, literally, cover the disposal of a sweet wrapper in a rubbish bin). The injunction does not prohibit such conduct. The structure is important. The injunction only applies to the defendants. The defendants are those who are "damaging, and/or blocking the use of or access to any Shell petrol station in England and Wales, or to any equipment or infrastructure upon it, by express or implied agreement with others, with the intention of disrupting the sale or supply of fuel to or from the said station." So, the prohibitions in the injunction only apply to those who fall within that description. Further, the order does not impose a blanket prohibition on the conduct identified in paragraph 3. It only does so where that conduct is undertaken "in express or implied agreement with any other person, and with the intention of disrupting the sale or supply of fuel to or from a Shell Petrol Station."
22. It follows that while paragraph 3 is drafted quite widely, its impact is narrowed by the requirements of paragraph 2. This is deliberate. It is because the claimant is not able to maintain an action in respect of the activity in paragraph 3 (read in isolation) in respect of those Shell petrol stations where it has no interest in the land. It is only actionable where that conduct fulfils the ingredients of the tort of conspiracy to injure (as to which see paragraph 26 below). The terms of the injunction are therefore deliberately drafted so as only to capture conduct that amounts to the tort of conspiracy to injure".
Evidence in support of the applications to extend the injunctions
The petrol stations
The risk of future harm
Issue (1): Whether to permit Ms Branch to make submissions, and if so on what basis and to what extent
Ms Branch's application
"It is clear from its terms…that CPR 40.9 does not empower the court to set aside a judgment or order wherever it might think that appropriate. It is a precondition that the applicant is 'directly affected' by the judgment or order. That the power should not be untrammelled makes obvious sense. In general, a defendant to a claim should be left to decide for himself whether to defend it. Further, it could hardly be appropriate to allow a third party to apply to have a judgment set aside unless he would then be in a position either to defend the claim on the defendant's behalf or to put forward a defence of his own."
"These cases support the proposition that in order for a non-party to be 'directly affected' by a judgment or order for the purposes of CPR 40.9, it is necessary that some interest capable of recognition by the law is materially and adversely affected by the judgment or order, or would be materially and adversely affected by the enforcement of the judgment or order.
Since the "directly affected" test is for the purpose of establishing locus standi, it is sufficient that the relevant judgment or order would prima facie be capable of materially and adversely affecting a legal interest. It is not necessary to show that it would, in fact, do so, for that would be the subject of the application itself".
"A person can be directly affected in many ways. The order may affect the person financially. It may affect the person's property rights or possession of property. It may affect the person's investments or pension. The order may affect a person's ability to travel or to use a public highway. The order may affect the person's ability to work or enjoy private life or social life or to obtain work and in so many other ways. It may affect rights enshrined in the Human Rights Act 1988".
(i): Direct effect
(ii): "Good point"
The Breen factors and discretion under CPR 40.9
The limits of CPR 40.9
The nature of Ms Branch's involvement
Issue (2): Whether to grant the Claimant in the petrol stations claim permission to amend the description of the Persons Unknown Defendants
Issue (3): Whether to extend the three injunctions for up to a further year in the manner sought by the Claimants
(1): Is there a serious question to be tried, applying the test set out in American Cyanamid v Ethicon  AC 396 per Lord Diplock at 407G?
The Haven and Tower claims
The petrol station claims
"25. The claimant has a strong case that on 28 April 2022 the defendants committed the activities identified in paragraph 3 of the draft order: those activities are shown in photographs and videos. There are apparent instances of trespass to goods (the damage to the petrol pumps and the application of glue), trespass to land (the general implied licence to enter for the purpose of purchasing petrol does not extend to what the defendants did) and nuisance (preventing access to the petrol stations). None of this gives rise to a right of action by the claimant in respect of those Shell petrol stations where it does not have an interest in the land and does not own the petrol pumps. It is therefore not, itself, able to maintain a claim in trespass or nuisance in respect of all Shell petrol stations".
"26. The claim advanced by the claimant is framed in the tort of conspiracy to injure by unlawful means ("conspiracy to injure"). The ingredients of that tort are identified in Cuadrilla Bowland Ltd v Persons Unknown  EWCA Civ 9;  4 WLR 29 per Leggatt LJ at : (a) an unlawful act by the defendant, (b) with the intention of injuring the claimant, (c) pursuant to an agreement with others, (d) which injures the claimant.
27. To establish the tort of conspiracy to injure, it is not necessary to show that the underlying unlawful conduct (to satisfy limb (a)) is actionable by the claimant. Criminal conduct which is not actionable in tort can suffice (so long as it is directed at the claimant): Revenue and Customs Commissioners v Total Network SL  UKHL 19;  1 AC 1174 per Lord Walker at  and Lord Hope at . A breach of contract can also suffice, even though it is not actionable by the claimant: The Racing Partnership Ltd v Done Bros (Cash Betting) Ltd  EWCA Civ 1300;  Ch 233 per Arnold LJ at .
28. The question of whether a tort, or a breach of statutory duty, can suffice was left open by the Supreme Court in JST BTS Bank v Ablyaszov (No 14) UKSC 19;  AC 727. Lord Sumption and Lord Lloyd-Jones observed, at , that the issue was complex, not least because it might – in the case of a breach of statutory duty – depend on the purpose and scope of the underlying statute and whether that is consistent "with its deployment as an element in the tort of conspiracy."
29. For the purposes of the present case, it is not necessary to decide whether a breach of statutory duty can found a claim for conspiracy to injure, or whether every (other) tort can do so. It is only necessary to decide whether the claimant has established a serious issue to be tried as to whether the torts that are here in play may suffice as the unlawful act necessary to found a claim for conspiracy to injure. Those torts involve interference with rights in land and goods where those rights are being exercised for the benefit of the claimant (where the petrol station is being operated under the claimant's brand, selling the claimant's fuel). Recognising the torts as capable of supporting a claim in conspiracy to injure does not undermine or undercut the rationale for those torts. It would be anomalous if a breach of contract (where the existence of the cause of action is dependent on the choice of the contracting parties) could support a claim for conspiracy to injure, but a claim for trespass could not do so. Likewise, it would be anomalous if trespass to goods did not suffice given that criminal damage does. I am therefore satisfied that the claimant has established a serious issue to be tried in respect of a relevant unlawful act".
"30. There is no difficulty in establishing a serious issue to be tried in respect of the remaining elements of the tort. The intention of the defendants' unlawful activities is plain from their conduct and from the published statements on the websites of the protest groups: it is to disrupt the sale of fuel in order to draw attention to the contribution that fossil fuels make to climate change. They are not solitary activities but are protests involving numbers of activists acting in concert. They therefore apparently undertake their protest activities in agreement with one another. Loss is occasioned because the petrol stations are unable to sell the claimant's fuel".
"31. I am therefore satisfied that there is a serious issue to be tried.
32. Further, the evidence advanced by the claimant appears credible and is supported by material that is published by the groups to which the defendants appear to be aligned. That evidence is therefore likely to be accepted at trial. I would (if this had been a trial) wished to have clearer and more detailed evidence (perhaps including expert evidence) as to the risks that arise from the use of mobile phones, glue and spray paint in close proximity to fuel, but it is not necessary precisely to calibrate those risks to determine this application. It is also, I find, likely that the court at trial will adopt the legal analysis set out above in respect of the tort of conspiracy to injure (including, in particular, that the necessary unlawful act could be a tort that is not itself actionable by the claimant). It follows that not only is there a serious issue to be tried, but the claimant is also more likely than not to succeed at trial in establishing its claim".
(2) Would damages be an inadequate remedy for the Claimants and would a cross-undertaking in damages adequately protect the Defendants?
(3) Alternatively, does the balance of convenience otherwise lie in favour of the grant of the order: American Cyanamid per Lord Diplock at 408C-F?
"…the balance of convenience favours the grant of injunctive relief. If an injunction is not granted, then there is a risk of substantial damage to the claimant's legal rights which might not be capable of remedy. Conversely, it is open to the defendants (or anybody else that is affected by the injunction) at any point to apply to vary or set aside the order. Further, although the injunction has a wide effect, there are both temporal and geographical restrictions."
(4) Is there a sufficiently real and imminent risk of damage so as to justify the grant of what is a precautionary injunction?
"41. If the claimant is given sufficient warning of a protest that would involve a conspiracy to injure, then it can seek injunctive relief in respect of that specific event. If there were grounds for confidence that such warnings will be given, then the risk now (in advance of any such warning) might not be sufficiently imminent to justify a more general injunction. There is some indication that protest groups sometimes engage with the police and give prior warning of planned activities. But it is unlikely that sufficient warning would be given to enable an injunction to be obtained. That would be self-defeating. Further, it is not always the case that warnings are given. Extinction Rebellion say in terms (on its website) that it will not always give such warnings. Moreover, the claimant did not receive sufficient (or any) warning of the activities on 28 April 2022.
42. Accordingly, I am satisfied that this application is not premature, and that the risk now is sufficiently imminent. The claimant may not have a further opportunity to seek an injunction before a further protest causes actionable harm".
(5) Do the prohibited acts correspond to the threatened tort and only include lawful conduct if there is no other proportionate means of protecting the Claimant's rights: Canada Goose at  and [82(5)]?
(6) Are the terms of the injunctions sufficiently clear and precise: Canada Goose at [82(6)]?
(7) Do the injunctions have clear geographical and temporal limits: Canada Goose at [82(7)] (as refined and explained in Barking and Dagenham LBC v Persons Unknown  EWCA Civ 13 per Sir Geoffrey Vos MR at  - )?
(8) The Defendants having not been identified, are they in principle, capable of being identified and served with the orders: Canada Goose at [82(1)] and [82(4)]?
(9) Are the Defendants identified in the claim forms and the injunctions by reference to their conduct: Canada Goose at [82(2)]?
(10) Are the interferences with the Defendants' rights of free assembly and expression necessary for and proportionate to the need to protect the Claimants' rights: Articles 10(2) and 11(2), read with the HRA, section 6(1)?
"…the interference must be "necessary in a democratic society" in pursuance of a specified legitimate aim, and this means that it must be proportionate to that aim. The four-stage test of proportionality applies: (i) Is the aim sufficiently important to justify interference with a fundamental right? (ii) Is there a rational connection between the means chosen and the aim in view? (iii) Was there a less intrusive measure which could have been used without compromising the achievement of that aim? (iv) Has a fair balance been struck between the rights of the individual and the general interest of the community, including the rights of others?".
(11) Have all practical steps been taken to notify the Defendants: the HRA, section 12(2)?
"(1) This section applies if a court is considering whether to grant any relief which, if 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— (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified".
(12) If the order restrains "publication", is the Claimant likely to establish at trial that publication should not be allowed: the HRA, section 12(3)?
"No such relief [ie. that defined by section 12(1) at  above] 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".
"67. Nothing in the injunction explicitly restrains publication of anything. Nor does it have that effect. The defendants can publish anything they wish without breaching the injunction. The activities that the injunction restrains do not include publication. It does not, for example, restrain the publication of photographs and videos of the protests that have already taken place. Nor does it prevent anyone from, for example, chanting anything, or from displaying any message on any placard or from placing any material on any website or social media site.
68. Lord Nicholls explained the origin of section 12(3) in Cream Holdings Limited v Banerjee  UKHL 44  1 AC 253 (at ). There was concern that the incorporation of article 8 ECHR into domestic law might result in the courts readily granting interim applications to restrain the publication by newspapers (or others) of material that interferes with privacy rights. Parliament enacted section 12(3) to address that concern, by setting a high threshold for the grant of an interim injunction in such a case. It codifies the prior restraint principle that previously operated at common law. The policy motivation that gave rise to section 12(3) has no application here.
69. The word "publication" does not have an unduly narrow meaning so as to apply only to commercial publications: "publication does not mean commercial publication, but communication to a reader or hearer other than the claimant" – Lachaux v Independent Print Limited  UKSC 27;  AC 612 per Lord Sumption at . Lord Sumption's observation was made in the context of defamation, but Parliament legislated against this well-established backdrop. Section 12(3) should be applied accordingly so that "publication" covers "any form of communication": Birmingham City Council v Asfar  EWHC 1560 (QB) per Warby J at .
70. The meaning set out by Lord Sumption in Lachaux is sufficient to achieve the underlying policy intention. There is therefore no good reason for giving the word "publication" an artificially broad meaning so as to cover (for example) demonstrative acts of trespass in the course of a protest. Such acts are intended to publicise the protestor's views, but they do not amount to a publication.
71. Further, the wording of section 12 itself indicates that the word "publication" has a narrower reach than the term "freedom of expression". That is because the term "freedom of expression" is expressly used in the side-heading to section 12, and in section 12(1), and is used (by reference ("no such relief")) in section 12(2) and section 12(3). The term "publication" is then used in section 12(3) to signify one form of expression. If Parliament had intended section 12(3) to apply to all forms of expression, then there would have been no need to introduce the word "publication".
"73…. That was plainly correct, because the injunction restrained activities that were intended to express support for a particular cause. It does not, however, necessarily follow that section 12(3) is engaged (because, as above, "publication" is not the same as "expression"). There does not appear to have been any argument on that point – rather the focus was on the question of whether there was an interference with the right to freedom of expression. To the extent that Morgan J in Ineos and Lavender J in [National Highways Limited v Persons Unknown  EWHC 3081 (QB) at ] reached different conclusions about the applicability of section 12(3) in this context, I respectfully adopt the latter's approach for the reasons I have given".
"But I would go further. I am satisfied that it would be quite wrong to treat the word "publication" in s 12(3) as having a limited meaning, restricted for example (as Mr Manning's submission seemed to imply) to commercial publication. It is hard to see how that such an approach could be rationally defended. It would give commercial publishers preferential treatment compared to other defendants, such as individuals communicating for private purposes, on social media. As everybody knows, some social media accounts have larger readerships than some paid-for newspapers. But there is a more fundamental point. In the law of defamation, "publication does not mean commercial publication, but communication to a reader or hearer other than the claimant": Lachaux v Independent Print Ltd  UKSC 27  (Lord Sumption). This is generally true of the torts associated with the communication of information, sometimes known as "publication torts", and the related law (see the discussion in Aitken v DPP  EWHC 1079 (Admin)  1 WLR 297 [41-62]). Parliament must be taken to have legislated against this well-established background. Section 12(3) applies to any application for prior restraint of any form of communication that falls within Article 10 of the Convention. This is appropriately reflected in the language of the Practice Guidance, quoted above." [emphasis added].
Overall conclusion on Issue (3)
Issue (4): Whether to grant the Claimants permission to serve any order and ancillary documents by alternative means
"Alternative service is necessary for the relief to be effective. Moreover… the Defendants already have a great deal of constructive knowledge that the [injunctions] may well be extended: the extent and disruptive nature of the JSO protests since March 2022 (and the Insulate Britain protests which began in September 2021); the multiple civil and committal proceedings brought in response to those protests by National Highways Limited, TfL, local authorities and energy companies and the frequent service of documents on defendants within those proceedings including multiple interim injunctions; the extensive media and social media coverage of the protests, their impact, and of the legal proceedings brought in response; the large extent to which, in order to organise protests and support each other, JSO protesters are in communication with each other both horizontally between members and vertically by JSO through statements, videos etc. shared through its website and social media. These are not activities that single individuals undertake of their own volition. In my judgment, in the perhaps unusual circumstances of this case, it is very unlikely, perhaps vanishingly unlikely, that anyone who is minded to take part in the JSO protests…is unaware that injunctive relief has been granted by the courts."
Issue (5): Whether to grant the Claimant in the petrol stations claim its application for a third party disclosure order against the Commissioner
"(1) The name and address of the people concerned are likely to support the case of the claimant or adversely affect the case of one of the other parties to the proceedings. Being able to identify who the people are who have been acting in the way complained of is a central facet of the interim relief that the court has already granted. Evidence of breach will go to upholding the […] injunction.
(2) Disclosure is necessary in order to dispose fairly of the claim or to save costs, because (a) without the names and addresses the claimant cannot enforce the […] injunction without significant impediments; and (b) the claimant needs the names and addresses in order to make good an undertaking it has given to the court to add defendants as named defendants wherever possible.
(3) Identifying the protesters will allow them to defend their position in the proceedings and it increases the fairness of the proceedings to have named defendants as far as possible.
(4) The Metropolitan Police have stated to the claimant that it will only disclose the requested information pursuant to a court order and they do not oppose the grant of the making of that order.
(5) The disruption to the public and the risks involved mean that it is proportionate to order third party disclosure.
(6) It is much more desirable for the evidence gathering to be undertaken by the police, rather than for third parties such as inquiry agents to interfere during the demonstrations in order to obtain such evidence."
(i) Grant Ms Branch permission to apply to set aside or vary the existing injunctions under CPR 40.9 and have taken her submissions into account;
(ii) Grant the Claimant in the petrol stations claim permission to amend the description of the Persons Unknown Defendant:
(iii) Extend the three injunctions for up to a further year in the manner sought by the Claimants, subject to the modifications identified at  and  above; and
(iv) Grant the Claimants permission to serve the three orders as well as the amended claim form and ancillary documents in the petrol stations claim by alternative means.
Typographical amendments have been made under the slip rule to paragraphs 54, 59, 76, 124, 188, 196 and 215 above.