Cuciurean v The Secretary of State for Transport & Anor

For civil contempt by breach of an injunction, the applicant must prove the essential ingredients and compliance with applicable procedural requirements to the criminal standard. Due service by a court-authorised alternative method satisfies the requirement of notice. The applicant need not additionally prove actual knowledge or retrospectively establish that the method was reasonably effective. The prohibited act must be deliberate, but an intention to breach the order is unnecessary.

Separate requirements to maintain notices do not undo completed service unless the order makes them conditions of service. Non-compliance may nevertheless bear on knowledge and sanction. Sanctions must reflect both the seriousness of disobedience and the need for future compliance. Conscientious, non-violent protest warrants restraint, although persistent breaches may justify suspended committal. Obstructive protest may qualify as civil disobedience aimed at changing policy, and using some force does not necessarily amount to violence.

The Secretary of State for Transport and High Speed Two (HS2) Limited held woodland near Kenilworth for the HS2 railway project. Andrews J granted an injunction against persons unknown prohibiting entry onto or remaining on defined land without consent, subject to a rights-of-way exception. Her reasons appeared in [2020] EWHC 671 (Ch). The order authorised alternative service through displayed documents and notices, together with electronic publication. It separately required periodic checks that the displayed material remained legible.

Elliott Cuciurean, an environmental protestor who was not originally named as a defendant, faced contempt proceedings for alleged incursions onto the land. Marcus Smith J found 12 breaches in [2020] EWHC 2614 (Ch). He imposed concurrent six-month committal orders, suspended for 12 months, giving reasons in [2020] EWHC 2723 (Ch).

Cuciurean challenged the evidence identifying the land and establishing notice or knowledge of the injunction. He also challenged the allocation of the burden of proof, the effect of failures to verify continuing display of notices, and the proportionality of the sanctions.

The liability appeal was dismissed. The sanctions appeal was allowed in part. Warby LJ gave the judgment, with which Edis and Lewison LJJ agreed.

1. An injunction must be obeyed until set aside. A contempt respondent cannot obtain an acquittal by reopening its merits. The merits of the project and the protest therefore had no bearing on liability, although protest motives could affect sanction.

2. The applicant bore the burden of proving the essential ingredients of contempt and compliance with procedural requirements to the criminal standard. The rejected evidence of one witness did not leave the findings without evidential support. Other witness evidence, plans, photographs and recordings supported the findings. A circumstantial case may satisfy the criminal standard although individual strands do not. Occasional language suggesting probability did not establish that the judge had applied a lower standard. Existing boundary features also legitimately informed interpretation of the plan attached to the injunction.

3. Due service under a properly made alternative-service order satisfied the notice requirement. Attorney General v Times Newspapers Ltd and Cuadrilla Bowland Ltd v Persons Unknown supported that conclusion. The requirement that alternative service should reasonably bring proceedings to a defendant’s attention was prospective. Canada Goose UK Retail Ltd v Persons Unknown and the associated authorities required no retrospective reassessment on committal. The prohibited act had to be deliberate, but no additional intention to disobey was required. The suggested power to set aside good service merely because proceeding would be unjust was rejected.

4. Independently, ample evidence supported actual knowledge. Knowing breach required awareness that an order prohibited entry onto certain land and knowledge that the land entered fell within that prohibition. Reading the definitions or studying the plan was unnecessary. Awareness of the penal notice was also unnecessary where the order bore that notice and was served.

5. The requirement to check and replace notices was separate from the provisions completing service. Failure to prove continuing checks did not invalidate service. A shortfall could affect evidence of knowledge and sanction. Possible consequences of serious non-compliance, including abuse of process, were left open.

6. Persistent, deliberate disobedience crossed the custody threshold. Criminal sentencing rules applied only cautiously by analogy. However, an ordinary-case starting point of 18 months was markedly excessive against the two-year maximum under section 14(1) of the Contempt of Court Act 1981. The judge also gave insufficient weight to the guidance in Cuadrilla Bowland Ltd v Persons Unknown. Obstruction intended to change policy remained civil disobedience, and the force used did not amount to violence. Committal was reduced to three months, suspended for 12 months on the original conditions.

• Court of Appeal (Civil Division): In [2021] EWCA Civ 357 , upheld the contempt findings and reduced the concurrent suspended committal terms from six months to three months. The suspension period and conditions remained unchanged.
• High Court, Business and Property Courts: Marcus Smith J found 12 breaches in [2020] EWHC 2614 (Ch) . He imposed concurrent six-month committal orders, suspended for 12 months, with reasons in [2020] EWHC 2723 (Ch) .
• High Court: Andrews J granted the underlying injunction against persons unknown on 17 March 2020, with reasons in [2020] EWHC 671 (Ch). The injunction authorised alternative service and separately required checks on displayed documents and notices.