Elliott Cuciurean v Secretary of State for Transport & Anor

A person named elsewhere in proceedings may fall within a clearly defined class of “persons unknown” governed by an injunction where later conduct brings that person within the class. A plausible alternative construction does not itself make an order too ambiguous to support contempt.

A sanction for civil contempt must be just, proportionate and directed particularly towards securing compliance. Conscientious motives carry little or no mitigating weight where a serial contemnor causes excessive harm, rejects dialogue and repeatedly disregards court orders. An unsuccessful defence must not be treated as aggravating culpability. A fine is generally inappropriate alongside imprisonment where the contemnor lacks means to pay.

The appellant, a named defendant in proceedings concerning protests against the HS2 scheme, entered and remained for 46 days on land protected by an injunction addressing specified named occupiers and “persons unknown” entering or remaining on the land. Although he believed that the injunction bound him, he argued that his status as a named defendant prevented him from also falling within the class of persons unknown.

Ritchie J rejected that argument, found contempt and imposed 268 days’ immediate imprisonment and a £3,000 fine: [2022] EWHC 2457 (KB). The appeal challenged both liability and sanction. The central questions were whether the injunction governed the appellant and whether the sanction was excessive or affected by errors of principle.

1. By a majority, the appeal against the finding of contempt was dismissed. Coulson and Edis LJJ held that the appellant’s later entry and occupation brought him within the clearly defined class of persons unknown governed by the injunction. The definition focused on future prohibited activity, not merely whether the respondents knew his name when the order was made. His separate status as a named defendant did not prevent him from falling within that defined class.
2. The injunction was sufficiently clear. A plausible competing construction did not itself create ambiguity. The appellant understood throughout that the order bound him, knew which conduct it prohibited and deliberately committed that conduct. The principles concerning notice and service in Canada Goose and Cameron did not establish that a named defendant could never fall within a class defined by future conduct.
3. Phillips LJ dissented on liability. In his view, the authoritative distinction between known and unknown defendants prevented the appellant, who was expressly named and whose possible future entry was anticipated, from becoming a person unknown. The omission of injunctive relief against him could not be cured through the definition of another defendant class.
4. The challenge to the custodial term was unanimously rejected. An appeal against sanction is a review, and appellate intervention is confined to a decision which is wrong or unjust because of serious irregularity. The first-instance judge had impermissibly suggested that pursuing the construction defence might count against the appellant. An unsuccessful defence could not properly aggravate sentence or demonstrate a lack of insight. The error did not, however, affect the sanction imposed.
5. The 268-day term was neither excessive nor unreasonable. The contemnor’s high culpability, extensive harm, prior offending, earlier suspended sentences and repeated procedural defaults justified immediate and substantial custody. Conscientious motives did not attract a distinct “Cuadrilla discount”. The controlling requirement was a proportionate sanction after considering all the circumstances. Where serial contempt, excessive harm and rejection of dialogue were established, such motives could carry negligible weight.
6. The £3,000 fine was quashed because the appellant lacked assets and was already serving immediate custody. Edis LJ added that imprisonment and a fine remain available together in an appropriate case involving a person with means, where the combination is required to secure compliance.

1. Court of Appeal (Civil Division): By a majority, upheld the finding of contempt; unanimously upheld the 268-day custodial term; and quashed the £3,000 fine: [2022] EWCA Civ 1519.
2. High Court, King’s Bench Division: Ritchie J found the appellant in contempt and imposed 268 days’ immediate imprisonment and a £3,000 fine: [2022] EWHC 2457 (KB).