MBR Acres Limited v Free the MBR Beagles

An interim injunction against protesters must be precise, necessary and proportionate. An order against “Persons Unknown” must identify defendants by reference to allegedly unlawful conduct, and must contain clear geographical and temporal limits. A court should avoid restraining protest by reference to concepts such as harassment where those concepts are fact-sensitive and difficult for laypersons to apply. Where possible, a territorial exclusion zone may protect access and other rights with less interference with freedom of expression.

A representative action is inappropriate where the represented class does not have the same interest because liability depends on the individual conduct and circumstances of each person. Sections 145 and 146 of the Serious Organised Crime and Police Act 2005 create criminal offences only and cannot found a civil injunction.

The claimants sought interim and final injunctions against named protesters, “Persons Unknown”, and two alleged unincorporated associations connected with Facebook campaigning. The claims concerned harassment, trespass, alleged obstruction, protest activity, online publication and conduct said to engage sections 145 and 146 of the Serious Organised Crime and Police Act 2005.

The claim had initially been commenced under Part 8. It was transferred to Part 7 because it included alleged harassment by speech, raised substantial factual disputes and involved multiple defendants. The court considered the representative-action issue, the formulation of relief against “Persons Unknown”, the interaction between protest rights and the rights of claimants and employees, and the proposed terms of the injunction.

Disposition. The court refused the wide injunction sought. It refused relief against the first and second defendants in their alleged representative capacities, directed that the claim against them be stayed, and granted a limited territorial injunction against the remaining defendants.

1. Representative defendants. Under CPR 19.6, the proposed members of the two Facebook groups did not have the same interest. The alleged wrongs were fact-specific, varied between protesters, and required individual assessment of liability and proportionality. The class could include persons who had done nothing wrong and would change as new protesters joined. The representatives were therefore prohibited from acting under CPR 19.6(2).
2. Criminal provisions. Sections 145 and 146 of the Serious Organised Crime and Police Act 2005 create criminal offences and no civil cause of action. The claimants could not enforce those provisions by civil injunction without the necessary consent, following Gouriet -v- Union of Post Office Workers [1978] AC 435.
3. “Persons Unknown”. The definition in the claim form was defective because it captured every person protesting in the specified area and used the vague expression “unlawful activities”. The Canada Goose principles required conduct-based identification, a sufficiently real and imminent risk of tort, proper service, precise prohibited acts, and clear geographical and temporal limits.
4. Speech and protest. Where relief may affect expression, section 12(3) of the Human Rights Act 1998 required the claimants to show that they were more likely than not to establish at trial that publication should not be allowed. Protest engages Articles 10 and 11. The court had to apply an intense, fact-specific proportionality assessment and avoid arbitrary restrictions likely to chill lawful protest. The proposed restrictions on numbers, duration, clothing, loudhailers, notification and procession were neither justified nor proportionate.
5. Relief granted. Trespass onto the Wyton Site justified an injunction. A limited exclusion zone around the entrances to the Wyton and B&K sites was also justified to prevent obstruction and confrontation. The court declined to prohibit drone flights, finding the trespass issue legally uncertain and identifying possible alternative causes of action such as misuse of private information or breach of confidence. The interim injunction previously granted by Stacey J was to be discharged and replaced by the new order.