Monsanto plc v Tilly & Ors

The court may grant summary judgment where a pleaded defence has no real prospect of success. The common-law defence of necessity to trespass is exceptional. It ordinarily requires an emergency involving immediate and serious danger, no reasonable alternative, and reasonable action. A private citizen cannot justify trespass merely by asserting that unlawful interference is in the public interest, by seeking publicity, or by attempting to change government policy. Where a public authority regulates the activity in question, private self-help is especially restricted. A person entitled under an agreement to exclusive possession of growing crops may sue for trespass to land, even where the land is owned by another. Representative proceedings may be used against an organised group where the relevant members share the same interest in the unlawful activity.

Monsanto conducted licensed research trials of genetically modified crops. The respondents, associated with GenetiX Snowball, entered trial sites and uprooted plants as part of a campaign against genetic modification. Monsanto brought proceedings for trespass to land and goods and related torts, seeking injunctions.

Klevan J refused Monsanto’s application for summary judgment under RSC Order 14 and gave the defendants unconditional leave to defend. The actions were consolidated, and the Court of Appeal considered whether the judge had given adequate reasons, whether Monsanto had sufficient interest in the crops and land, whether necessity or public interest supplied an arguable defence, whether the defendants were properly sued representatively, and whether the sixth respondent was a joint tortfeasor.

1. Appeal allowed. The judge’s reasons were inadequate. A professional judge ordinarily must give reasons, particularly where questions of law are involved. The omission did not require remission because the Court of Appeal was able to determine the issues itself.
2. Under CPR 24.2(a)(ii), summary judgment may be entered where the defendant has no real prospect of successfully defending the claim. The court should not permit a trial merely to investigate issues which cannot constitute a defence in law, especially where a trial would be expensive and the issues are not properly justiciable.
3. Monsanto had sufficient interest to sue for trespass. Under the agreements with growers, the resulting crops belonged to Monsanto and Monsanto had the relevant entitlement to exclusive possession of them. The claim could therefore be maintained as trespass to land. Uprooting also severed the crops, permitting a claim in trespass to goods.
4. The pleaded defence of necessity had no real prospect of success. Necessity is confined to exceptional circumstances, ordinarily requiring immediate and obvious danger to life or property, no reasonable alternative, and reasonable conduct. The respondents’ symbolic and limited uprooting was inconsistent with an emergency requiring eradication of the danger.
5. There was no general public-interest defence permitting private citizens to damage another’s property in order to oppose a licensed activity, obtain publicity, or change government policy. Political motives do not make unlawful conduct lawful. Challenges to the legality of the licences had to be pursued through judicial review.
6. The representative order was proper under RSC Order 15 rule 12. The central activity of the organisation was the coordinated uprooting of GM crops, and without the order Monsanto would lack adequate preventive protection against persons who knew of the injunction.
7. The sixth respondent was arguably, and on the evidence plainly, a joint tortfeasor. He participated in a common design by reconnoitring the site, organising media access, attending the attack and promoting the acts of uprooting.

The precise form of injunction was to be settled. No order for costs was made. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): allowed Monsanto’s appeal from Klevan J’s refusal of summary judgment. The Court of Appeal determined the issues itself and ordered that the injunction be settled in precise form.
• Queen’s Bench Division: Klevan J heard Monsanto’s consolidated summary-judgment application on 19–20 April 1999, refused summary judgment and gave the defendants unconditional leave to defend.