Cuciurean v The Secretary of State for Transport & Anor

For civil contempt by breach of an injunction, the applicant must prove service and the essential ingredients of breach to the criminal standard. Where an order validly prescribes alternative service on persons unknown, compliance with that method is sufficient. The applicant need not also prove actual notice or knowledge of every term of the order.

Checking obligations imposed after service do not ordinarily make service conditional, although serious non-compliance may have other consequences. In fixing a sanction for protest-related contempt, the court must uphold the rule of law and deter disobedience, while giving proper weight to the conscientious and non-violent character of civil disobedience. The sanction must remain just and proportionate.

The respondents held woodland near Kenilworth for the HS2 project. Andrews J granted an injunction against persons unknown prohibiting entry onto defined land and providing for alternative service by notices and other measures.

The appellant, an environmental protester, was found by Marcus Smith J to have made 12 deliberate incursions into the land. The judge held him in contempt in Cuciurean v Secretary of State for Transport [2020] EWHC 2614 (Ch) and imposed six months’ committal, suspended for 12 months, in [2020] EWHC 2723 (Ch).

On appeal, the appellant challenged the proof that he entered the land, the adequacy and effect of alternative service, his knowledge of the order, and the relevance of later checking requirements. He also challenged the custodial sanction as disproportionate.

1. The liability appeal was dismissed. The respondents had proved to the criminal standard that the appellant deliberately entered the land covered by the injunction on 12 occasions. The trial judge’s conclusion was supported by the evidence, including the physical boundary fencing, notices, plans, photographs and video evidence. It was not perverse.

2. Compliance with a validly ordered method of alternative service is sufficient to engage the civil contempt jurisdiction. The applicant need not prove actual notice of the order, its plan, or every term. Civil contempt requires service and a deliberate act which in fact contravenes the order; it does not require an intention to breach it. Actual lack of knowledge may be highly material to sanction, but does not prevent liability.

3. Paragraph 10 of the March Order, requiring periodic checks that notices remained in place and legible, was not a condition of good service. Paragraphs 8 and 9 prescribed and deemed good service. A serious failure to comply with a checking requirement might in another case bear on knowledge, abuse of process, or other consequences, but did not assist the appellant on these facts.

4. The court also found that the appellant had actual knowledge sufficient even on his stricter case. A person need not study every definition or the plan attached to an order. It was enough to know that a court order prohibited entry onto particular land and knowingly enter land within that prohibition.

5. The sanctions appeal was allowed in part. A custodial sanction was justified by repeated and deliberate defiance of the injunction. However, Marcus Smith J’s 18-month starting point was markedly too severe, and he drew overly narrow distinctions from protest-related civil disobedience discussed in Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9. The proper sanction was three months’ committal, suspended for 12 months on the same conditions.

• Court of Appeal (Civil Division): Allowed the appeal only as to sanction. The findings of contempt were upheld, but the suspended committal order was reduced from six months to three months: [2021] EWCA Civ 357.
• High Court, Business and Property Courts: Marcus Smith J found the appellant in contempt for 12 breaches of the injunction: Cuciurean v Secretary of State for Transport [2020] EWHC 2614 (Ch).
• High Court, Business and Property Courts: Marcus Smith J imposed six months’ committal, suspended for 12 months: [2020] EWHC 2723 (Ch).