Birmingham City Council v Afsar & Ors

An application for an interim injunction without notice is exceptional. The applicant must give a clear, evidence-based explanation for secrecy, address the absent party’s likely arguments, and satisfy the jurisdictional conditions in sections 12(2) and 12(3) of the Human Rights Act 1998 where Article 10 expression is affected. Section 12(3) applies to prior restraint of any Article 10 communication, not merely commercial publication. The court must be likely to grant final relief at trial. Full and frank disclosure failures may require discharge, although fresh relief may be granted where the merits justify it. Protest injunctions may restrain unlawful harassment, intimidation or obstruction while preserving lawful, even offensive, dissent. Orders must be certain and narrowly framed, and a Persons Unknown class must be defined with limits.

Birmingham City Council sought injunctions concerning protests outside Anderton Park School. The original orders were granted without notice against three named defendants and Persons Unknown. On the return date, the named defendants applied to discharge those orders for material non-disclosure, while the Council sought their continuation and further protection pending trial. The court also had to determine the proper scope of any order against Persons Unknown and whether the proposed restrictions unlawfully interfered with protest, religious expression, association and freedom of expression. The central issues were whether the without-notice orders should be discharged and what, if any, interim injunctions should remain in force pending trial.

1. Disposition. The orders granted without notice were discharged because of serious cumulative failures in full and frank disclosure and procedural compliance. Fresh, narrower interim injunctions were granted pending trial, with costs.
2. Applications without notice are exceptional. The applicant must provide a distinct, clear and evidence-based explanation for secrecy, identify the likely counter-arguments, and establish a very good or compelling reason. The merits of the claim, the limited duration of the relief, or the fact that protest is not wholly prohibited do not themselves justify secrecy. The approach in Moat Housing Group South Ltd v Harris [2005] EWCA Civ 287 was applied. RST v UVW [2009] EWHC 2448 (QB) was distinguished because the evidence showed possible escalation of an existing protest, rather than steps that would defeat the purpose of the injunction.
3. The duty of full and frank disclosure extends to material facts and significant legal and procedural matters, and is owed by the applicant’s lawyers as well as the applicant. The Council had failed to explain adequately why notice was not given, had omitted the statutory threshold under section 12(3) of the Human Rights Act 1998, and had failed to draw attention to relevant procedural guidance and countervailing evidence.
4. Section 12(3) of the Human Rights Act 1998 applies to any prior restraint of communication falling within Article 10. The word publication is not confined to commercial publication. The court must be satisfied that the applicant is likely to obtain final relief at trial; normally, likely means more likely than not. The lower statutory threshold for anti-social behaviour injunctions did not replace that requirement.
5. Following Thames Cleaning and Support Services Ltd v United Voices of the World [2016] EWHC 1310 (QB), the court asked whether the Council was likely to show a risk of unlawful and actionable protest and whether an injunction could restrain unlawful conduct without improperly restraining lawful dissent. The evidence of baseless allegations, abusive communications, aggressive intimidation, obstruction and disruption justified limited protection, particularly for children, staff and parents.
6. Lawful peaceful protest and the expression of offensive opinions were protected. Prohibitions on harassment, nuisance or annoyance, or offensive comments, without precise limits, were too broad or vague. The orders were therefore redrafted for clarity and certainty. The class of Persons Unknown was also narrowed in accordance with Bloomsbury Publishing Group v News Group Newspapers Ltd [2003] EWHC 1205 (Ch) and the principles identified in Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515.