University of Oxford & Ors v Broughton & Ors

Interlocutory injunctive relief may protect a class of persons from threatened harassment, including persons who cannot yet be individually identified. The requirements for representative proceedings under CPR 19.6 are flexible in civil proceedings and need not mirror the ingredients of a criminal offence. Where Convention rights are engaged, the court should apply the threshold in section 12(3) of the Human Rights Act 1998; in general, the applicant must show prospects sufficiently favourable to justify relief, ordinarily amounting to a probability of success. The court may restrain unlawful harassment while permitting lawful protest and expression. Restrictions, including exclusion zones and prohibitions on photographing potential targets, must be necessary and proportionate.

The claimants sought continuation of an interim injunction protecting University employees, contractors, suppliers and their employees from harassment connected with opposition to the construction of an animal research laboratory. The injunction had initially been granted ex parte and later varied and continued pending this hearing.

The defendants challenged the use of representative proceedings, the breadth of the protected class and protester definition, the anonymity of protected persons, and the compatibility of the proposed restrictions with Articles 6, 8, 10 and 11 of the Convention. The central questions were whether threatened unlawful conduct was sufficiently likely and whether the proposed restraints were legally available, necessary and proportionate.

1. Interim threshold. Where freedom of expression is engaged, section 12(3) of the Human Rights Act 1998 requires prospects of success sufficiently favourable to justify interim restraint. Following Cream Holdings Ltd v Banerjee [2004] UKHL 44, the ordinary threshold is that the claimant is probably more likely than not to succeed. Where Convention rights are not engaged, the American Cyanamid Co v Ethicon Ltd [1975] A.C. 396 test applies, although the court considered it safer to apply the more stringent threshold.
2. Representative protection. The criminal authorities concerning a close-knit group, including D.P.P. v Dziurznski [2002] EWHC 1380, did not determine the scope of a civil injunction. CPR 19.6 could be used flexibly to protect a class sharing a common interest, including anonymous employees and contractors. The injunction was prospective and could restrain conduct which, if continued against identified individuals, might amount to the completed offence of harassment.
3. Unknown protesters and protected persons. M. Michaels (Furriers) v Askew [1983] C.A. Bound Transcript 278 supported an injunction against unknown members of a loosely formed association where there was an arguable connection with unlawful acts. The anonymity of the protected persons did not make compliance impossible, since the alleged victims would be identified in any breach or criminal proceedings.
4. Evidence and Convention rights. The evidence showed a real prospect that lawful demonstrations would be accompanied by tortious or criminal conduct directed against the claimants and associated contractors. Freedom of expression and peaceful assembly did not include a right to incite crime or permanently prevent others pursuing lawful activities. The restrictions were limited, necessary and proportionate. Exclusion zones and a prohibition on photographing protected persons were justified because photography could facilitate targeting.
5. The injunction was continued in substantially the terms of the order of Simon J, subject to specified additions and amendments. The application was refused as against SPEAC and the 7th, 8th and 9th defendants. Relief was granted against the other relevant defendants, subject to the judgment’s treatment of the first and third defendants and Mr Broughton’s undertaking. Costs were reserved.

First-instance interlocutory application. The injunction was initially granted ex parte by Cox J on 3 September 2004 and varied and continued by Simon J on 13 September 2004. This court continued it with amendments.