EDO MBM Technology Ltd v Campaign To Smash EDO & Ors

An interim injunction under the Protection from Harassment Act 1997 may restrain an actual or apprehended course of conduct connected with public protest. The Act contains no fixed requirement of violence, threats of violence, or a particular category of case. A single relevant incident may support an apprehension of future harassment, although the evidence must establish a proper basis for that apprehension. Where freedom of expression and assembly are engaged, restrictions must be convincingly established, justified by compelling reasons, carefully scrutinised, proportionate and no more than necessary. The enhanced Cyanamid approach requires the court to be satisfied that relief is probably more likely than not to be granted at trial.

The proceedings concerned applications by EDO MBM Technology Ltd and its managing director for interim relief against individuals and groups involved in protests concerning EDO’s defence-related activities and the Iraq and Israeli-Palestinian conflicts. The managing director sought to represent employees, subcontractors and security personnel. The claim alleged a continuing campaign involving obstruction, aggravated trespass, criminal damage, abuse, targeting of homes and employees, and other intimidating conduct.

The defendants applied to strike out the claims, challenged the representative and defendant arrangements, and opposed an injunction as unjustified and disproportionate. The central issues were whether the corporate claimant could claim under the Act, whether the proposed representation and proceedings against the associations were permissible, whether future harassment could properly be apprehended, and what restrictions were proportionate.

1. Corporate claimant. On the existing law, a company could not bring a claim under section 1 of the Protection from Harassment Act 1997. The corporate claimant therefore sought no relief in its own right, but remained in the proceedings.
2. Representation. The managing director and the employees, subcontractors and security personnel had a common interest in not being harassed. A representation order was therefore made under CPR 19.6.
3. Unincorporated associations. Smash EDO was, at least for the interim applications, a sufficiently identifiable unincorporated association conducting a concerted campaign. It could not, however, be sued without representative individuals before the court. The proceedings against Smash EDO were struck out, with liberty to commence fresh proceedings if suitable representatives could be identified. The proceedings against BOOB were also struck out because the evidence did not establish that it was an association rather than a slogan.
4. Interim test. The applicable test was an enhanced Cyanamid test. Because the injunction engaged freedom of expression and assembly, and breach could carry criminal consequences, the court had to be satisfied that relief was probably more likely than not to be granted at trial. The assessment of future risk was an evaluative judgment, not an application of a separate standard of proof.
5. Harassment and protest. The Act must be applied with great care to public protest, but it contains no inflexible threshold requiring violence, threats of violence, alarm or distress. An apprehended breach does not require conduct on two occasions; one relevant incident may suffice if there is a proper evidential basis for apprehension. The availability of the criminal law did not preclude a prospective civil injunction.
6. Application. The convictions for obstruction and aggravated trespass, their connection with the campaign, and evidence of intimidation and targeting established a real risk that the relevant defendants might participate in future conduct capable of constituting harassment. Relief was refused against the defendants whose case rested on a single trespass nearly eight months earlier and whose aggravated-trespass charge had ended in acquittal. The claims against them were nevertheless not struck out.
7. Terms. The injunction was confined to conduct such as harassment, photography of protected persons, abusive or threatening written and electronic communications, trespass, knowingly picketing or loitering near homes, specified exclusion-zone conduct, and publication of identifying information. Restrictions on noise, oral abuse, protest frequency and numbers, protest camps, and compelling conduct were rejected as unnecessary or disproportionate. The remaining restrictions were proportionate and no more than necessary.