Boyd & Anor v Ineos Upstream Ltd & Ors

Courts may grant quia timet injunctions against persons unknown who fall within the defendants’ description only upon committing a prohibited tort. Effective notice and an opportunity to be heard must be available. Such relief requires caution. Orders must correspond to the threatened tort, preserve lawful conduct, contain sufficiently clear prohibitions and have geographical and temporal limits. Peaceful assembly confers no right to trespass on private property. Advance restrictions on highway protest may be impermissibly uncertain where lawfulness depends on circumstances and degree, or prohibitions depend on undefined slow walking or subjective intentions. Where section 12(3) of the Human Rights Act 1998 applies, the court must assess whether the claimant is likely to obtain final relief, including whether the requisite threat is likely to be established at trial.

Ineos Upstream Limited and other Ineos companies owned or leased sites intended for shale gas exploration and office premises. Individual landowners joined them as claimants. Relying principally on evidence of protests against other operators, they sought advance injunctions against groups of persons unknown to restrain trespass, interference with private rights of way, public nuisance and conspiracy to cause loss through unlawful acts directed at their supply chain.

Morgan J granted interim injunctions in those categories, having found a real and imminent threat of unlawful conduct. Joseph Boyd and Joseph Corré had been joined as defendants, but no injunction was made against either. They obtained permission to appeal against the orders concerning persons unknown. Friends of the Earth intervened through written submissions.

The appeal concerned jurisdiction to restrain persons unknown, compliance with section 12(3) of the Human Rights Act 1998, and the scope and clarity of the supply-chain injunction. The court also examined the restrictions on highway protest and the absence of temporal limits.

The appeal was allowed in part. Longmore LJ delivered the judgment, with which David Richards and Leggatt LJJ agreed.

1. There was no conceptual or legal prohibition on suing persons unknown who would come within the defendants’ description upon committing the prohibited tort. Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 concerned existing anonymous defendants and did not prohibit proceedings against future protesters. Effective notice remained essential to permit those affected to be heard. The availability of organisations which could be named as defendants did not prevent proceedings against unknown persons likely to commit the threatened torts ([29]–[32]).

2. The court tentatively formulated six requirements: a sufficiently real and imminent risk of a tort; inability to name the likely tortfeasors; effective notice by a method specified in the order; prohibitions corresponding to the threatened tort and preserving lawful conduct; sufficiently clear and precise terms; and clear geographical and temporal limits. The first three requirements were satisfied. Courts should nevertheless exercise particular caution because the reach of injunctions against unknown persons is difficult to assess beforehand ([31]–[35]).

3. Peaceful assembly, protected by the common law and article 11 of the European Convention of Human Rights, conferred no right to trespass on private property. The trespass injunction was sufficiently clear. The private right-of-way injunction properly required substantial interference, a well-established concept needing no further definition. Both injunctions had acceptable geographical limits, but their lack of temporal limits required reconsideration ([36]–[38]; [43]).

4. The public nuisance and supply-chain injunctions were too wide and uncertain. Damage was essential to unlawful-means conspiracy, although that requirement did not itself prevent quia timet relief. Incorporating subjective intentions into these orders was inappropriate, consistently with the reasoning in Hampshire Waste Services Ltd v Intended Trespassers Upon Chineham Incinerator Site [2004] Env LR 196. Undefined slow walking might cause no damage. Unreasonable highway obstruction depended on facts and degree, as recognised in DPP v Jones [1999] 2 AC 240. References to lawful authority or excuse also failed to tell ordinary protesters clearly what they could do. Such uncertainty risked chilling lawful protest through fear of committal ([39]–[42]).

5. Section 12(3) of the Human Rights Act 1998 required assessment of the likelihood of obtaining final relief. An interim finding of a real and imminent threat did not complete that inquiry. The judge had given insufficient express consideration to whether the requisite threat would probably be established at trial ([47]–[49]).

The injunctions against the third and fifth defendant groups were discharged and the claims against them dismissed. The injunctions against the first and second groups were maintained pending remission to Morgan J to reconsider section 12(3) and, if relief continued, appropriate temporal limits ([50]–[53]).

• Court of Appeal (Civil Division): In [2019] EWCA Civ 515 , unanimously allowed the appeal in part. Discharged the injunctions against the third and fifth defendant groups and dismissed those claims. Maintained the other injunctions pending remission for reconsideration under section 12(3) of the Human Rights Act 1998 and the setting of temporal limits.
• High Court, Chancery Division: Morgan J initially granted without-notice relief on 28 July 2017. Following further hearings, he granted interim injunctions against persons unknown concerning trespass, private rights of way, public nuisance and unlawful-means conspiracy. He declined relief concerning harassment and made no injunction against Boyd or Corré. The citation of his judgment is not stated in the judgment.