HIGH SPEED TWO LIMITED v LARCH MAXEY & Ors

Approval of a consent order disposing of civil contempt proceedings is not determined solely by the parties’ wishes. The court must consider the public interest in deterring disobedience to court orders and upholding the rule of law.

The relevant assessment concerns the breaches, the contemnors’ culpability and the harm caused. Relevant mitigating considerations include subsequent compliance, admissions, apologies, delay in bringing the application, the claimant’s position, and undertakings which reduce the risk of repetition and may avoid further litigation and public expense. Serious breaches involving substantial danger may ordinarily justify imprisonment, even where the court ultimately accepts a pragmatic settlement.

The claimant, the nominated undertaker for the HS2 project, brought committal proceedings against five defendants who had occupied underground tunnels at Euston Square Gardens. The proceedings alleged breaches of orders requiring the defendants to stop tunnelling, provide information and co-operate in leaving the tunnels safely.

The defendants admitted contempt and agreed undertakings concerning future compliance with injunctions and non-interference with HS2 operations. The claimant sought approval of a consent order dismissing the committal application without an order for costs. The central issue was whether the court should approve that disposal despite the seriousness of the admitted breaches.

1. Consent order approved. The court approved the draft consent order, with considerable reluctance. The defendants’ breaches were serious and highly culpable because they knowingly exposed themselves and specialist rescue personnel to grave risks. The undertakings were treated as a final warning. A future breach may result in committal to prison, and a future sentencing court should take account of the circumstances in which this order was made.
2. The court’s decision was not governed only by the claimant’s satisfaction with the proposed outcome. Civil contempt engages the court and the public, as well as the beneficiary of the order, because effective enforcement of orders is integral to the rule of law. The court may commit of its own motion under CPR rule 81.6, and permission is required to discontinue a committal application under paragraph 16.3 of Practice Direction 81.
3. In assessing the appropriate disposal, the court applied the guidance in Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357 and National Highways Limited v Ana Heyatawin & Ors [2021] EWHC 3078 (QB). The narrow issue was the breaches, the defendants’ culpability and the particular harm caused. The wider history of trespass, disruption and cost provided context but was principally for the underlying proceedings.
4. The court weighed the grave risks and disruption against substantial compliance within a relatively short period, the claimant’s delay in issuing the committal application, the absence of evidence of further similar activity, sincere admissions and apologies, and undertakings binding until 31 December 2024. The undertakings were equivalent to court orders and carried the risk of imprisonment for breach. They also contained a punitive element and could prevent further litigation and public expense.
5. In accepting the defendants’ submissions concerning future disruption, the court applied DPP v Zeigler [2021] 3 WLR 179: the undertakings precluded reliance on Articles 10 and 11 of the European Convention on Human Rights to argue that future disruption might be permissible.
6. The judgment was directed to be transcribed at the claimant’s expense for use in any future proceedings concerning breach of the undertakings.