Orsted Hornsea Project Three (UK) Ltd, Re Injunction Hearing

Where statutory and common-law rights compete, the court may determine which should take precedence by examining all the circumstances. Relevant considerations include the benefit to the parties and the public, any economic imbalance, and the geographical and temporal limits of the rights.

For a time-limited interim injunction which is unlikely to survive until trial, the court must make some assessment of the claimant’s prospects of success. A serious issue to be tried alone is insufficient. The ordinary American Cyanamid Co v Ethicon Ltd principles remain relevant, including adequacy of damages and the balance of convenience.

The claimant had statutory permissions, licences and Crown permission to conduct geophysical and geotechnical surveys for an offshore wind farm. Fishing gear remained within the survey area despite negotiations and notices to local fishermen. The claimant sought interim injunctive relief to prevent further placement of gear and to permit removal of remaining unidentified gear.

The court considered whether the fishermen’s public or common-law fishing rights were unlawfully interfered with, whether the claimant’s rights took precedence, and whether interim relief should be granted before the surveys commenced.

1. The application was granted. The order was amended to add named organisations as defendants and to remove mandatory provisions which could not effectively be served on the owners of unidentified fishing gear.

2. For a time-limited injunction where trial would occur after the relevant period, Lansing Linde Limited v Kerr required some assessment of the claimant’s prospects of success. It was not sufficient merely to identify a serious issue to be tried. The court considered that the claimant was likely to establish at trial that its rights prevailed.

3. The court treated the rights as competing statutory and common-law rights. Precedence was determined by examining all the circumstances, including the benefits to the parties and the public, economic imbalance, and the geographical and temporal limits of the respective rights. The claimant’s survey rights were confined to a defined area and limited period, while fishermen remained able to fish elsewhere. Compensation was also available.

4. The court applied the principles in American Cyanamid Co v Ethicon Ltd. The claimant had a serious issue to be tried. Damages were not an adequate remedy for the claimant, and the fishermen could not meet the potential damages. Conversely, the claimant could satisfy its cross-undertaking in damages. The balance of convenience therefore favoured the injunction.

5. The court also accepted the principle identified in Canada Goose UK Retail Limited v Persons Unknown that, in appropriate circumstances, lawful activity may be limited where this is necessary and proportionate to protect the claimant’s rights.