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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 3081 (QB)
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Neutral Citation Number:  EWHC 3081 (QB)
Claim No: QB-2021-003977
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Law Courts
50 West Bar
Sheffield S3 8PH
Date: 17 November 2021
MR JUSTICE LAVENDER
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National Highways Limited
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Persons unknown deliberately causing the blocking,
slowing down, obstructing or otherwise interfering
with the flow of traffic onto or off or along the
strategic road network for the purpose of protesting
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Saira Kabir Sheikh QC and Charles Merrett (instructed by the
Government Legal Department) for the Claimant
The following Defendants in Person: Dr Diana Lewen Warner (27th),
Jerrard Mark Latimer (44th), Liam Norton (54th), Michael Brown (67th), Rob Stuart (83rd), Stephen Gower (95th), Tim Speers (105th), Victoria Anne Lindsell (110th)
and Andria Efthimious-Mordaunt (123rd)
Owen Greenhall (instructed by Hodge Jones Allen)
for Jessica Branch and Caspar Hughes
Hearing date: 11 November 2021
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Mr Justice Lavender:
With immediate effect and until the earlier of (i) Trial; (ii) Further Order; or (iii) 23.59 pm on 31 December 2021, the Defendants and each of them are forbidden from deliberately undertaking the activities prohibited in paragraphs 3.1, 3.2, 3.3 and 3.4 below:
3.1 Blocking, slowing down, obstructing or otherwise interfering with the flow of traffic onto or along or off the SRN for the purpose of protesting.
3.2 Blocking, slowing down, obstructing or otherwise interfering with access to or from the SRN, including doing so by any activity on any adjacent slip roads or roundabouts which are not vested in the Claimant, for the purpose of protesting which has the effect of slowing down or otherwise interfering with the flow of traffic onto or along or off the SRN.
(2)(b) The Insulate Britain Protests
(1) five protests on the M25 on 15 September 2021;
(2) three protests on the M25 on 17 September 2021;
(3) protests on the M3 at Junction 1 and the M11 at Junction 8 on 17 September 2021;
(4) a protest on the M25 and one on the A1M at Junction 4 (Hatfield) on 20 September 2021;
(5) two protests on the M25 on 21 September 2021;
(6) a protest on the A20 near Dover on 24 September 2021;
(7) protests on the M25 on 27, 29 and 30 September 2021;
(8) protests on the M25 and on the M1 at Junction 1 (Brent Cross) and the M4 at Junction 3 (Heathrow Airport) on 1 October 2021;
(9) four protests on roads in London which are not part of the SRN on 4 October 2021;
(10) a protest on the M25 on 8 October 2021 (which is the subject of committal applications currently being heard by the Divisional Court);
(11) a protest on the M25 on 13 October 2021;
(12) protests on roads in London on 25 October 2021;
(13) protests on the M25 and, outside the SRN, on the A206 and the A40/4000 on 27 October 2021;
(14) two protests on the M25 on 29 October 2021;
(15) protests on the M25 and, outside the SRN, on the A538 (in Manchester) and the A4400 (in Birmingham) on 2 November 2021; and
(16) a protest in Parliament Square, London on 2 November 2021.
(2)(b) The Strategic Road Network and National Highways Limited
(1) The claimant maintains the SRN pursuant to a licence dated 1 April 2015 which obliges it, inter alia, to seek to minimise disruption to road users which might reasonably be expected to occur as a result of unplanned disruption to the network.
(2) Section 5(2)(b) of the Infrastructure Act 2015 provides that the claimant must, in exercising its functions, have regard to the effect of the exercise of those functions on the safety of users of highways.
(3) Section 130 of the Highways Act 1980 provides that it is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority.
(2)(c) The Injunctions
(1) constitute trespasses and nuisances;
(2) have caused widespread and serious disruption to road users, considerable economic damage, considerable public expense and anxiety, inconvenience and distress for road users; and
(3) create an immediate threat to the lives of the protestors and road users, including those reliant on the movement of emergency services vehicles.
(1) On 21 September 2021 I granted an interim injunction which applied to the M25 motorway (“the M25 injunction”: claim number QB-2021-003576).
(2) On 24 September 2021 Cavanagh J granted an interim injunction which applied to the A2, A20, A2070, M2 and M20: claim number QB-2021-003626.
(3) On 2 October 2021 Holgate J granted an interim injunction covering various access roads to London: claim number QB-2021-003737.
(4) On 25 October 2021 Linden J made the injunction which on 11 November 2021 I effectively varied, but refused to set aside, and which applies to the whole of the SRN, except those roads covered by the first three injunctions.
(2)(d) The Hearing
(3) Injunction against Persons Unknown
“Building on Cameron  1 WLR 1471 and the Ineos requirements, it is now possible to set out the following procedural guidelines applicable to proceedings for interim relief against “persons unknown” in protestor cases like the present one:
(1) The “persons unknown” defendants in the claim form are, by definition, people who have not been identified at the time of the commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. The “persons unknown” defendants must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary by alternative service such as can reasonably be expected to bring the proceedings to their attention. In principle, such persons include both anonymous defendants who are identifiable at the time the proceedings commence but whose names are unknown and also Newcomers, that is to say people who in the future will join the protest and fall within the description of the “persons unknown”.
(2) The “persons unknown” must be defined in the originating process by reference to their conduct which is alleged to be unlawful.
(3) Interim injunctive relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet relief.
(4) As in the case of the originating process itself, the defendants subject to the interim injunction must be individually named if known and identified or, if not and described as “persons unknown”, must be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order.
(5) 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.
(6) The terms of the injunction are sufficiently clear and precise as to enable persons potentially affected to know what they must not do. The prohibited acts must not, therefore, be described in terms of a legal cause of action, such as trespass or harassment or nuisance. They may be defined by reference to the defendant's intention if that is strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant is capable of understanding and the intention is capable of proof without undue complexity. It is better practice, however, to formulate the injunction without reference to intention if the prohibited tortious act can be described in ordinary language without doing so.
(7) The interim injunction should have clear geographical and temporal limits. It must be time limited because it is an interim and not a final injunction. …”
(1) The 122 defendants whose names were known were added as individual defendants when the proceedings were commenced.
(2) I have already set out the definition of “Persons unknown” in the present case.
(3) Paragraph 82(3) identifies what I consider to be the central issue for me to decide. I will return to this issue.
(4) As I have said, 122 defendants were named in the order. The “Persons unknown” are capable of being identified, as attested to by the fact that more defendants have been added.
(5) Especially in the light of the changes made at the hearing, I consider that the prohibited acts correspond as closely as is reasonably possible to the allegedly tortious acts which the claimant seeks to prevent.
(6) Likewise, I consider that the terms of the injunction are sufficiently clear and precise to enable persons potentially affected to know what they must not do. There are references to intention both in the word “deliberately” and in the words “for the purposes of protesting”, but “deliberately” was included at Mr Greenhall’s suggestion to protect people in the position of his clients and “for the purposes of protesting” serves to distinguish protestors from others who might block or slow down the flow of traffic, perhaps merely as a result of poor driving.
(7) I consider that the injunction has clear geographic and temporal limits. The geographic extent is considerable, since it covers 4,300 miles of roads, but this is in response to the unpredictable and itinerant nature of the Insulate Britain protests. Thus:
(a) I granted the M25 injunction on 21 September 2021 and the next Insulate Britain protests, on 24 September 2021, were in Kent.
(b) More recently, there have been protests in Manchester and Birmingham as well as Parliament Square in London. These protests were not on parts of the SRN, but they demonstrate that Insulate Britain protests can be held throughout the country.
(c) If the claimant is entitled to an injunction, then I do not consider that it is appropriate to require the claimant to continue seeking separate injunctions for separate roads, effectively chasing the protestors from one location to another, not knowing where they will go next. (I note, although this did not form part of my decision, that, at a hearing on 12 November 2021 in relation to the second injunction obtained by Transport for London, one of the protestors complained of the sheer volume of documents being served pursuant to the six injunctions now in place.)
(4) The Lawfulness (or Otherwise) of the Insulate Britain Protests
(1) Is what the defendant did in exercise of one of the rights in articles 10 or 11?
(2) If so, is there an interference by a public authority with that right?
(3) If there is an interference, is it “prescribed by law”?
(4) If so, is the interference in pursuit of a legitimate aim as set out in paragraph (2) of article 10 or article 11, for example the protection of the rights of others?
(5) If so, is the interference ‘necessary in a democratic society’ to achieve that legitimate aim?
(1) By participating in the Insulate Britain protests, the defendants are exercising their rights to freedom of expression and freedom of assembly in articles 10 and 11.
(2) The application for, and the grant of, an injunction to prevent the defendants continuing with the Insulate Britain protests on the SRN is an interference with those rights by a public authority.
(3) That interference is “prescribed by law”, namely section 37 of the Senior Courts Act 1981 and the cases which have decided how the discretion to grant an interim quia timet injunction should be exercised, together with section 130 of the Highways Act 1980.
(4) The interference is also in pursuit of a legitimate aim, namely the protection of the rights of other road users and the promotion of safety on the SRN.
“That last question will in turn require consideration of the well-known set of sub-questions which arise in order to assess whether an interference is proportionate:
(4) Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?”
“Determination of the proportionality of an interference with ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case.”
“39. As the judge recognised, the answer to the question which he identified at the start of his judgment [the limits to the right of lawful assembly and protest on the highway] 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 protesters, the duration of the protest, the degree to which the protesters 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.
40. The defendants argue that the importance of the issues with which the Occupy Movement is concerned is also of considerable relevance. That raises a potentially controversial point, because as the judge said, at para 155: ‘it is not for the court to venture views of its own on the substance of the protest itself, or to gauge how effective it has been in bringing the protestors’ views to the fore. The Convention rights in play are neither strengthened nor weakened by a subjective response to the aims of the protest itself or by the level of support it seems to command … the court cannot—indeed, must not—attempt to adjudicate on the merits of the protest. To do that would go against the very spirit of articles 10 and 11 of the Convention … the right to protest is the right to protest right or wrong, misguidedly or obviously correctly, for morally dubious aims or for aims that are wholly virtuous.’
41. Having said that, we accept that it can be appropriate to take into account the general character of the views whose expression the Convention is being invoked to protect. For instance, political and economic views are at the top end of the scale, and pornography and vapid tittle-tattle is towards the bottom. In this case the judge accepted that the topics of concern to the Occupy Movement were ‘of very great political importance’: para 155. In our view, that was something which could fairly be taken into account. However, it cannot be a factor which trumps all others, and indeed it is unlikely to be a particularly weighty factor: otherwise judges would find themselves according greater protection to views which they think important, or with which they agree. As the Strasbourg court said in Kuznetsov v Russia, para 45: ‘any measures interfering with the freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles—however shocking and unacceptable certain views or words used may appear to the authorities—do a disservice to democracy and often even endanger it. In a democratic society based on the rule of law, the ideas which challenge the existing order must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means …’ The judge took into account the fact that the defendants were expressing views on very important issues, views which many would see as being of considerable breadth, depth and relevance, and that the defendants strongly believed in the views they were expressing. Any further analysis of those views and issues would have been unhelpful, indeed inappropriate.”
(1) The peaceful nature of the protest.
(2) The fact that the defendants’ action did not give rise, either directly or indirectly, to any form of disorder.
(3) The fact that the defendants did not commit any criminal offences other than obstructing the highway.
(4) The fact that the defendants’ actions were carefully targeted and were aimed only at obstructing vehicles heading to the arms fair.
(5) The fact that the protest related to a “matter of general concern”.
(6) The limited duration of the protest.
(7) The absence of any complaint about the defendants’ conduct.
(8) The defendants’ longstanding commitment to opposing the arms trade.
(1) The Insulate Britain protests have been peaceful. Although some protestors have glued themselves to the road, it has not been suggested that there has been any instance in which a protestor has offered physical or violent resistance to being removed from the road.
(2) The Insulate Britain protests have, so far, not given rise to any form of disorder. However, other road users have increasingly taken steps themselves to remove the protestors from the road. On one occasion, this resulted in a protestor being tied up with his own banner. The risk of disorder is increasing.
(3) It is not suggested that the Insulate Britain protestors committed any offences other than obstructing the highway.
(4) The Insulate Britain protests are not targeted in any way at those against whom the protestors are protesting. Insofar as they are protesting about government policy, the protests (save perhaps for the recent protest in Parliament Square) are not targeted at government.
(5) I accept that the Insulate Britain protests relate to a “matter of general concern”, in that they relate to what the government acknowledge to be an important issue. However, insofar as they seek to pursue the specific objective of changing government policy about home insulation, the protests could be said to relate to a rather more specific issue.
(6) The Insulate Britain protests are many in number and are not limited in duration. The disruption which they have caused to users of the SRN is considerable.
(7) It is abundantly clear from press reports that many members of the public object to the Insulate Britain protests. At least one press report suggested than an ambulance was held up at one protest, but the defendants deny this.
(8) As I have already said, I accept that the defendants are expressing genuine and strongly held views.
(1) By protesting on the SRN, the defendants are obstructing a road network which is important both for very many individuals and for the economy of England and Wales. In that context, it is strongly arguable that the aim pursued by the claimant is sufficiently important to justify interference with a fundamental right. I base that conclusion primarily on the considerable disruption caused by the Insulate Britain protests and less on the risk to safety, which, thankfully, has not yet resulted in any injuries being inflicted at any of the protests.
(2) I also accept that it is strongly arguable that there is a rational connection between the means chosen by the claimant and the aim in view. The aim is to allow road users to make use of the SRN, which is their right. Prohibiting the blocking of those road users’ exercise of their rights is directly connected to that aim.
(3) There are no less restrictive alternative means available to achieve that aim. As to this:
(a) An action for damages would not prevent the disruption caused by the protests. The claimant is suing to enforce the rights of others and so could not claim damages for their loss. The loss caused by the protests would be difficult, if not impossible, to quantify. Several of the defendants told me that they did not have much money, so they may well be unable to pay substantial damages. The threat of having to pay damages does not appear in the circumstances to be likely to have any deterrent effect.
(b) It might be said that prosecutions for the offence of obstructing the highway would be a sufficient response to the Insulate Britain protests. However, all of the named defendants have been arrested and some of them have told me that they will continue to protest and they are willing to give up their liberty.
(c) By contrast, there is some evidence that injunctions do affect the protestors’ behaviour. For instance, it may be that the M25 injunction was the reason why the next Insulate Britain protest was in Kent, rather than on the M25. More recent protests have been on roads which are not part of the SRN. Moreover, the M25 injunction has already led to committal applications, which, if successful, may prevent some protestors from continuing their protests during the period of their committal.
(4) Taking account of all of the factors which I have identified in this judgment, I consider that it is strongly arguable that the injunction granted by Linden J strikes a fair balance between the rights of the individual protestors and the general interest of the community, including the rights of others. As to this:
(a) On the one hand, the injunction only prohibits the defendants from protesting in a particular way. I do not accept the defendants’ claim that it was necessary for them to protest in this way. There are many other ways of protesting. Moreover, as I have already noted, unlike the protest in Zeigler, the Insulate Britain protests on the SRN are not directed at a specific location which is the subject of the protests.
(b) On the other hand, the Insulate Britain protests have caused repeated, prolonged and serious disruption to the activities of many individuals and businesses and have done so on roads which are particularly important to the population and economy of this country. The protestors choose where to protest, but they deprive other road users of any choice to avoid the protests and to avoid being held up for long periods of time, with all of the personal or economic consequences which may follow.
(1) There is a serious issue to be tried whether the Insulate Britain protests involve the commission of the torts of trespass and nuisance on the SRN. Indeed, although section 12(3) of the Human Rights Act 1998 is not applicable, I consider that the test which it imposes is met and that the claimant is likely to establish at trial that the Insulate Britain protests involve the commission of the torts of trespass and nuisance on the SRN.
(2) Damages would not be an adequate remedy for either party. I have already dealt with the position of the claimant. It would be difficult to quantify the loss to the defendants if they were wrongly prohibited from carrying on a lawful protest.
(3) For reasons which I have already given, the balance of convenience strongly favours the continuation of the injunction.