University of Oxford & Ors v Broughton & Ors

An appellate court may revisit a discretionary decision where the judge failed to take a material factor into account, gave inadequate reasons, or otherwise erred in principle. In proceedings under the Protection from Harassment Act 1997, an undertaking is not equivalent to an injunction where breach of an injunction may trigger a statutory criminal offence and police arrest powers. The public-order context can therefore make an injunction appropriate, particularly where there is evidence of non-compliance. A claim against an individual should not be struck out merely because an unincorporated association is also a defendant. Avoiding proliferation of parties does not justify removing a properly maintainable personal claim where damages and disclosure are sought.

The University and other claimants brought interlocutory proceedings for injunctions and damages under the Protection from Harassment Act 1997, and for conspiracy and nuisance, arising from protests against a laboratory. Holland J continued restrictions but accepted an undertaking from Mr Broughton and struck out Mr Avery’s statement of case under CPR 3.4.2(b). The claimants appealed those two decisions. The central issues were whether the judge had properly exercised his discretion in accepting the undertaking and whether Mr Avery’s personal claim was likely to obstruct the just disposal of the proceedings.

The Court of Appeal unanimously allowed the appeal in both respects.

1. Mr Broughton. The court applied the principles in AEI Rediffusion Music Limited and Phonographic Performance Ltd [1999] 1 WLR 1507, as approved in Price v Price [2003] EWCA Civ 888; [2003] 3 All ER 911. An appellate court may intervene where a first-instance judge has erred in principle, failed to consider a material factor, or failed adequately to explain the discretionary decision. Holland J had not addressed the important statutory distinction between an injunction and an undertaking under the Protection from Harassment Act 1997. Breach of an injunction without reasonable excuse is a criminal offence under section 3(6), with police enforcement powers. Breach of an undertaking does not attract that offence. The amendments introduced by the Serious Organised Crime and Police Act 2005 gave the proceedings a public-order dimension. In light of the evidence of Mr Broughton’s previous breach and his prominent role in the campaign, an undertaking was inappropriate. An injunction should have been imposed.
2. Mr Avery. The court considered the meaning of obstruction under CPR 3.4.2(b), which requires a high degree of impediment, and held that strike out of an otherwise maintainable claim is a last resort. Avoiding proliferation of parties was a proper objective, but it did not justify striking out a personal claim merely because Mr Avery was also associated with SHAC, an unincorporated association already joined as a defendant. His personal liability, the claim for damages, and the need for disclosure against him were materially different. The claim was not likely to impede to a high extent the just disposal of the proceedings.

The order was varied to impose the injunction on Mr Broughton, and the strike-out of the claim against Mr Avery was set aside.

• Court of Appeal (Civil Division): allowed the appeal against both aspects of Holland J’s order; citation [2006] EWCA Civ 1305.
• High Court of Justice, Queen’s Bench Division: Holland J’s interlocutory order dated 26 May 2006 accepted an undertaking from Mr Broughton and struck out Mr Avery’s statement of case.