Emerson Developments & Ors v Avery & Ors

For an interim injunction engaging freedom of expression, assembly or association, the court must assess whether the claim has a real prospect of success, rather than merely a serious question to be tried. The court must then balance the claimant’s need for protection against the defendants’ Convention rights. An injunction may be granted against an unincorporated association where the evidence establishes a sufficient risk of unlawful harassment. An exclusion zone is permissible where it is necessary and proportionate to protect the claimant, and goes no further than reasonably required.

The claimants sought injunctive relief under section 3 of the Protection Against Harassment Act 1997. They included companies connected with the ownership and letting of commercial property, a director, and employees represented by that director under CPR 19.6.

The defendants were associated with campaigns against companies dealing with Huntingdon Life Sciences and included individuals, SHAC, and the Animal Rights Militia. The claim alleged threatening communications, property damage, unlawful harassment and threatened future harassment of the claimants and employees. The central issues were whether the claims had a real prospect of success, whether relief could be granted against unincorporated associations, and whether the proposed injunction and exclusion zones were just, convenient and proportionate.

1. Representation. The permission granted under CPR 19.6 for Mr Wilson to represent the Emerson employees was maintained. The phrase “same interest” should be interpreted consistently with the overriding objective, including the saving of expense and the expeditious disposal of proceedings. The representative procedure was convenient and appropriate on the facts.
2. Harassment and liability. The conduct directed at the Emerson employees constituted unlawful harassment under sections 1 and 7 of the Protection Against Harassment Act 1997. The first three defendants were important members of SHAC’s inner core and were involved in organising its campaign. The evidence gave the claims against them, including the claim that they would encourage or assist others, a real prospect of success.
3. Interim threshold. In light of Cream Holdings v Banerjee [2003] EMLR 16, the real-prospect-of-success test was adopted for all relevant issues. The court therefore considered the merits sufficiently to conclude that the claims had that prospect, notwithstanding the defendants’ asserted rights of freedom of expression, assembly and association.
4. Unincorporated associations. Following the reasoning of Gibbs J in Huntingdon Life Sciences v SHAC & Others, there was no good reason in principle why an injunction could not be made against an unincorporated association. The relevant claims against the fifth and sixth defendants had at least a good prospect of success.
5. Balance and relief. The risk of further unlawful harassment outweighed the interference with the defendants’ rights under Articles 10 and 11 of the European Convention on Human Rights. Applying Burris v Azadani [1995] 1 WLR 1373, exclusion zones could be included where necessary to protect legitimate interests. The proposed order was proportionate and went no further than reasonably necessary. An injunction was granted in the draft terms, subject to amendment of paragraph 7(e).