Astellas Pharma Ltd & Ors v Stop Huntingdon Animal Cruelty (SHAC) & Ors

An injunction made in representative proceedings may bind persons represented by the representative defendant, but binding effect does not itself make those persons defendants or make the order enforceable against them. Permission to enforce an order against unidentified persons is discretionary and requires attention to fairness and individual circumstances. The court should not use civil proceedings to rule that unknown future conduct constitutes a criminal offence, or that an unknown person is a defendant for the purposes of a penal provision. Questions concerning section 3(6) of the Protection from Harassment Act 1997 should be decided when they arise on defined facts.

Pharmaceutical companies obtained summary judgment and wide injunctions under the Protection from Harassment Act 1997 against SHAC, ALF and representative defendants. The injunctions bound all persons represented in the proceedings, including broadly defined “Protestors”. The Deputy High Court Judge refused to add a direction making the orders enforceable against all Protestors, or otherwise to grant permission under CPR rule 19.6(4)(b), because unidentified persons had not been heard and their individual circumstances had not been considered.

The companies appealed, seeking clarification that all Protestors could be treated as defendants for section 3(6), and alternatively sought to join persons unknown as defendants. The central issues were the distinction between binding effect and enforceability, the construction of “the defendant” in section 3(6), and whether the Court of Appeal should determine those issues on the present appeals.

1. The appeals were dismissed. CPR rule 19.6(4) distinguishes between an order binding persons represented in representative proceedings and an order enforceable against a person who is not a party. The latter requires the court’s permission.
2. The reference to “the relevant person” in section 3A of the Protection from Harassment Act 1997 does not determine the meaning of “the defendant” in section 3(6). Section 3A envisages an identifiable person against whom an injunction claim is brought. The criminal consequence in section 3(6) cannot be extended merely because a person falls within a broad class bound by the injunction.
3. The Deputy Judge’s observation that permission was required for civil or criminal enforcement, including arrest, was obiter because the only issue before him was the exercise of the discretion under CPR rule 19.6(4). The Court of Appeal declined to give a concluded ruling on the construction of section 3(6), noting the force of a narrow construction of a penal provision and the competing possibility of a broader purposive construction.
4. The Deputy Judge was entitled to refuse permission to enforce the orders against unidentified Protestors. The orders were exceptionally wide, and enforcement, potentially through criminal process, without notice or consideration of individual circumstances could cause injustice. The companies’ legitimate need for effective protection had to be balanced against that risk.
5. Naming an unincorporated association as a defendant does not necessarily join all its current members as defendants. Rule 19.6 and the order made clear that the proceedings were representative proceedings.
6. An application to join persons unknown as defendants raised difficult and important questions, including the certainty of the class and the relationship between Articles 8 and 10 of the ECHR. It had not been fully argued and should first be made to the High Court.

• Court of Appeal (Civil Division): [2011] EWCA Civ 752, appeals dismissed. The court upheld the Deputy High Court Judge’s refusal to make the injunctions enforceable against all broadly defined Protestors.
• High Court of Justice, Queen’s Bench Division: Summary judgment was given for the claimant companies on 16 March 2010. The Deputy Judge refused the additional enforcement direction and stood the matter over for submissions on the form of order.