Boyd & Anor v Ineos Upstream Ltd & Ors

A quia timet injunction may be granted against persons unknown who will only become identifiable when they commit the threatened tort. The court must be satisfied that the threat is real and imminent, the potential defendants cannot practicably be named, effective notice can be given, and the order is clear, confined to the threatened tort, and has geographical and temporal limits.

Orders directed at lawful protest must not prohibit conduct merely because its legality will depend on facts and degree that cannot be assessed in advance. Freedom of peaceful assembly does not confer a right to trespass. Where freedom of expression is engaged, Human Rights Act 1998 section 12(3) requires a proper assessment of the likelihood that final relief restraining publication will be obtained.

Ineos and associated landowners obtained interim injunctions from Morgan J against several groups of persons unknown who were expected to protest against shale-gas exploration sites. The orders restrained trespass, interference with private and public access routes, and combinations to damage Ineos by unlawful acts directed at its supply chain.

Although no injunction was made directly against them, Mr Boyd and Mr Corré appealed on behalf of the affected persons unknown. They challenged the jurisdiction to enjoin future unknown protesters, the width and clarity of the orders, the application of Human Rights Act 1998 section 12(3), and the supply-chain conspiracy injunction.

The central issues were whether such persons unknown could be defendants and whether the anticipatory restrictions on protest were sufficiently precise and justified.

1. Appeal allowed in part. Longmore LJ, with whom David Richards and Leggatt LJJ agreed, held that there was no conceptual or legal prohibition on proceedings against persons unknown who did not yet exist but would come within the description when committing the prohibited tort. The Supreme Court authority concerning anonymous but existing defendants did not preclude this distinct quia timet jurisdiction.

2. The court identified six requirements for an injunction against persons unknown: a sufficiently real and imminent risk of tort; inability to name likely tortfeasors; effective notice specified in the order; terms corresponding to the threatened tort and not prohibiting lawful conduct; sufficient clarity and precision; and clear geographical and temporal limits. The first three were satisfied.

3. The injunctions against trespass and substantial interference with private rights of way were in principle sufficiently clear. The right to peaceful assembly under Article 11 did not include a right to trespass on private property. However, the surviving orders lacked a temporal limit.

4. The injunctions concerning public rights of way and supply-chain conspiracy were discharged. Their prohibitions on such matters as slow walking, unreasonable obstruction, absence of lawful excuse, and conduct intended to damage Ineos were too wide or insufficiently precise for advance quia timet relief. Their application could depend on subjective intention or on fact-sensitive assessments which protesters could not reliably make in advance. Such orders risked chilling lawful protest.

5. There was force in the submission that Morgan J had not adequately applied Human Rights Act 1998 section 12(3). It was necessary to assess whether the claimants were likely at trial to establish that publication should not be allowed, rather than assume acceptance of their evidence. The injunctions against the first and second defendants were maintained pending remission for reconsideration of that issue and of an appropriate temporal limit.

• Court of Appeal (Civil Division): Allowed the appeals in part, discharged the public-right-of-way and supply-chain injunctions, and remitted the remaining interim relief for reconsideration under Human Rights Act 1998 section 12(3): [2019] EWCA Civ 515.
• High Court, Chancery Division: Morgan J granted interim injunctions against groups of persons unknown in respect of anticipated protest activity. The citation of that decision was not stated in the judgment.