Maxey, R (On the Application Of) v High Speed 2 Ltd

Interim relief in judicial review requires a real prospect of success at the substantive hearing and, if that threshold is met, consideration of the balance of convenience. The court will not intervene merely because an alternative operational approach is suggested where the evidence supports the public authority’s safety arrangements. A claimant cannot ordinarily require a public authority to provide facilities that enable continued occupation of a dangerous site, particularly where the claimant is a trespasser. Expert evidence and pre-permission disclosure are exceptional in judicial review. The court may grant or maintain mandatory orders to bring continuing trespass to an end, including orders requiring cooperation with safe removal, and may attach a penal notice where deliberate non-compliance is threatened.

The claimant, an environmental activist occupying a clandestinely constructed tunnel beneath Euston Square Gardens, sought judicial review relief against operations by High Speed 2 Ltd to remove him and other protesters. The claim alleged breaches of Articles 2, 3 and 10 of the European Convention on Human Rights. The claimant applied for interim relief stopping the extraction operation, additional safety measures, a site visit and disclosure to support proposed expert evidence, and the setting aside of parts of an earlier interim order made by Mr Justice Robin Knowles.

High Speed 2 Ltd applied for a penal notice to enforce that order. The central issues were whether the claim had a realistic prospect of success, whether expert evidence and pre-permission disclosure were reasonably required, and whether the earlier order should be varied.

1. Interim relief. The governing principles were those in American Cyanamid Company v Ethicon Ltd [1975] AC 396, modified as appropriate for public law. The claimant had to show a serious question to be tried, expressed in judicial review as a real prospect of success, followed by consideration of the balance of convenience. The claim failed at the first stage.
2. There was no realistic prospect of establishing breaches of Articles 2, 3 or 10. The evidence showed that the operation had been planned, risk-assessed and subject to safety oversight; oxygen and gas levels were monitored; communications and rescue arrangements were available; and remaining underground was itself highly dangerous. The claimant was not detained and was choosing to remain as a trespasser. The defendant therefore had no apparent obligation to provide food and water so as to facilitate continued occupation, although it was removing human waste.
3. If necessary, the balance of convenience would also have favoured refusing relief. There was a strong public interest in allowing the defendant’s safety-led decisions to remain in force pending final determination, and the evidence did not establish the strong case required to stop the extraction operation.
4. Expert evidence and disclosure. Applying the principles explained in R (Law Society) v Lord Chancellor [2019] 1 WLR 1649, expert evidence was not reasonably required to resolve the judicial review. The applications for a site visit and disclosure were also premature, confidential and amounted to a fishing expedition. The absence of a realistic prospect of success weighed against pre-permission disclosure.
5. Earlier order. The order requiring the claimant to cease tunnelling, provide information about the tunnel’s construction and cooperate in leaving it safely was directed to ending continuing trespass and was just and convenient. Unlike City of London v Bovis Construction Ltd [1992] 3 All ER 697, it was not an injunction in aid of the criminal law. The information requirement concerning other occupants was discharged because it did not directly seek to end the claimant’s trespass. A penal notice was added, consistently with the principle identified in Mid Bedfordshire DC v Brown [2004] EWCA Civ 1709, because the claimant had openly indicated that he would disobey the order.
6. The claimant’s application was dismissed, save that paragraph 4(b) of the earlier order was set aside. The defendant’s application was granted, subject to the order as varied.

This was a first-instance judicial review judgment concerning interim applications. The judgment records an earlier interim order made by Mr Justice Robin Knowles on 1 February 2021, which was varied in the present judgment.