National Highways Ltd v Persons Unknown

An interim quia timet injunction may restrain protest on a highway where there is a serious issue to be tried that the conduct constitutes trespass or nuisance and the Convention rights to expression and assembly are proportionately interfered with.

Proportionality is fact-sensitive. Relevant considerations include the nature, location, duration and extent of the protest, the disruption caused, the importance of the rights of other road users, the availability of alternative means of protest, and the effectiveness of damages or criminal proceedings. An injunction may cover a wide road network where protests are itinerant and unpredictable, provided its terms are clear and its geographical and temporal limits are defined.

National Highways Limited sought continuation of an interim injunction made by Linden J against named defendants and persons unknown who deliberately blocked, slowed, obstructed or otherwise interfered with traffic on the strategic road network for the purpose of protesting.

The defendants argued that the protests were protected by articles 10 and 11 of the European Convention on Human Rights and that the injunction should be discharged or varied. The court considered the requirements for injunctions against persons unknown, whether there was a sufficiently real and imminent risk of tortious conduct, and whether the interference with Convention rights was proportionate.

1. Injunction against persons unknown. The court applied the procedural guidance in Canada Goose UK Limited v Persons Unknown [2020] 1 WLR 2802. The defendants known by name had been joined individually. The remaining persons unknown were capable of identification and service. The prohibited acts corresponded as closely as reasonably possible to the threatened torts, and the injunction was sufficiently clear and precise. Its extensive geographical scope was justified by the unpredictable and itinerant nature of the protests, while its temporal limit was appropriate for interim relief.
2. Convention rights and proportionality. The protests engaged articles 10 and 11. The injunction was an interference prescribed by law and pursued the legitimate aim of protecting other road users and promoting safety. Applying the five questions identified in DPP v Ziegler [2021] 3 WLR 179, and the proportionality questions discussed in that case, the interference was strongly arguable to be necessary in a democratic society.
3. The court treated proportionality as a fact-specific inquiry. Relevant factors included peacefulness, disorder, other criminality, targeting, the subject matter of the protest, duration, public complaints and the protestors’ commitment to their cause. Those factors were not exhaustive. The protests were peaceful and concerned an important matter, but they were repeated, prolonged, widespread and caused serious disruption on roads of major economic and public importance. They were not directed at a specific location connected with the subject of the protest, and other forms of protest were available.
4. The claimant had established a serious issue to be tried, and was likely to establish at trial that the protests involved trespass and nuisance. Damages were not an adequate remedy for either side. Prosecutions and damages were unlikely to prevent the disruption, whereas injunctions had some demonstrated effect. The balance of convenience strongly favoured continuation of the injunction.
5. The ex parte injunction made by Linden J was not set aside. It was discharged with effect from 11 November 2021 and replaced by a differently worded injunction, including the prohibitions set out in paragraphs 3.1 and 3.2 of the new order.

The judgment concerned the return hearing of an interim injunction made by Linden J on 25 October 2021. The court declined to set it aside, discharged it with effect from 11 November 2021, and substituted a differently worded injunction.