The Secretry of State for Transport (HS2) v Cuciurean

Contempt for breach of a prohibitory order requires proof beyond reasonable doubt that the order was properly served, clear and unambiguous, deliberately breached, and supported by the requisite penal notice. Alternative service may replace personal service where the order provides for it under the Civil Procedure Rules 1998. In proceedings against Category 3 persons unknown, the court should ordinarily respect the service arrangements made by the judge granting the injunction, but may set service aside where those arrangements operated unjustly against the alleged contemnor. Civil contempt does not require an intention to disobey the order. It is enough that the prohibited act was deliberate and that the contemnor knew the facts making it a breach.

The claimants obtained an interim injunction restraining persons unknown from entering or remaining on land at Crackley Wood used for the HS2 project. The order provided for alternative service by notices, email and website publication, and contained a penal notice. Mr Cuciurean was alleged to have entered the land on 17 occasions between 4 and 26 April 2020.

He contended that the order had not been properly served, that the land boundaries were unclear or wrongly demarcated, and that he was entitled to use a public right of way or temporary diversion. The application required determination of the procedural preconditions for committal, the clarity and geographical scope of the order, breach, and the mental element for civil contempt.

1. Application and service. The committal application complied with the requirements of the Civil Procedure Rules 1998, including particularised allegations, a penal-consequence notice, affidavit evidence and personal service of the application. The order itself was not required to be personally served. Paragraph 8 of the order provided for alternative service under CPR 81.8(2)(b), which displaced personal service. The stipulated steps were completed, and service of the order was effective on 25 March 2020.
2. Knowledge and continuing notices. No separate universal knowledge requirement operated in addition to service. However, alternative service had to operate justly in the individual case. Mr Cuciurean knew both of the order and of its material prohibition against entering the Crackley Land. The claimants’ inability to prove beyond reasonable doubt every inspection required by paragraph 10 of the order did not require service to be set aside, since the notices were shown to have been present during the relevant period and had not operated unjustly.
3. Clarity and breach. The order was clear and unambiguous. It prohibited entry onto land edged red on Plan B. The claimants proved beyond reasonable doubt that Incidents 1 to 3 and 5 to 13 involved deliberate entry onto that land. Incidents 4, 14, 15, 16 and 17 were not proved to the requisite geographical standard, or, in the case of Incident 4, were not proved to involve entry onto the land.
4. Footpaths. The public right of way PROW165X had been lawfully closed. Even assuming that the failure to open the proposed temporary diversion was unlawful in public law, that did not confer a private right to enter the land or to use self-help by crossing adjoining land or fencing. The carve-out in paragraph 5.1 of the order was therefore not engaged.
5. Deliberation and result. Civil contempt required only that the prohibited acts were intentional rather than accidental and that Mr Cuciurean knew the facts making them breaches. His repeated, conscious entries were deliberate, and his motives were immaterial. He was therefore in contempt of court in respect of Incidents 1 to 3 and 5 to 13. The issue of sanction was adjourned for mitigation.

The application was made following an earlier order and judgment concerning possession and injunctive relief, identified as [2020] EWHC 671 (Ch). This judgment determined the subsequent committal application.