Summary
An interim injunction against persons unknown may be granted where the claimant establishes a serious issue to be tried, damages are inadequate, and the remaining requirements governing precautionary relief are satisfied. The prohibited acts must correspond to the threatened tort and must be no wider than necessary and proportionate to protect the claimant’s rights. A persons unknown order must identify defendants by reference to conduct, with clear geographical and temporal limits and effective notification. Protest activity intended to cause unlawful interference with a lawful business lies at the margin of the protection afforded by articles 10 and 11 of the European Convention on Human Rights. Section 12(3) of the Human Rights Act 1998 concerns publication, not every form of expressive conduct, and does not apply where the injunction does not restrain publication.
Factual background
The claimant sought continuation of an emergency injunction restraining unidentified environmental protesters from damaging, obstructing or interfering with Shell petrol stations and associated equipment in England and Wales. The order had been made without notice and was reconsidered at a public hearing. No defendant applied to discharge or vary it, although an environmental activist sought an adjournment to obtain representation.
The claimant relied principally on the tort of conspiracy to injure by unlawful means. The issues were whether the requirements for interim relief against persons unknown were met, whether the order was sufficiently clear and proportionate, whether notification was adequate, and whether section 12(3) of the Human Rights Act 1998 was engaged.
Held
- Continuation granted. The claimant established a serious issue to be tried, and was more likely than not to succeed at trial. The pleaded tort was conspiracy to injure by unlawful means. Its ingredients were an unlawful act, intention to injure the claimant, agreement with others, and injury to the claimant. A criminal act or breach of contract could suffice even if not actionable by the claimant. The court held that trespass to land and goods could likewise constitute the necessary unlawful act in the circumstances of the case.
- Damages were inadequate for the claimant because enforcement against the defendants was likely to be impracticable and potential health and safety risks could not adequately be remedied by damages. The claimant’s cross-undertaking adequately protected the defendants. The balance of convenience also favoured relief.
- The risk was sufficiently real and imminent. Harm had already occurred, further protests had taken place, and public statements indicated an intention to continue. The injunction’s acts were confined to conduct amounting to conspiracy to injure. Its geographical scope, one-year maximum duration, and conduct-based description of the defendants were sufficiently clear and proportionate.
- The injunction interfered with assembly and expression but pursued the important aim of protecting the claimant’s lawful business. Applying the proportionality analysis required by articles 10(2) and 11(2) of the European Convention on Human Rights, the order was rationally connected to that aim, no more intrusive than necessary, and struck a fair balance. It did not prevent protest, communication, placards, websites or other expression that did not involve the prohibited tortious conduct.
- Section 12(2) of the Human Rights Act 1998 was satisfied because all practicable steps had been taken to notify the defendants. Section 12(3) was not engaged. Properly construed, publication meant communication to a reader or hearer, rather than every expressive or demonstrative act. The injunction did not restrain publication.
- The order made by McGowan J was continued for up to one year, subject to further order, with adjustments to the notice requirements.
The court’s approach to earlier authorities
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Key cases cited
20 authorities cited.
- Director of Public Prosecutions v Ziegler and others [2021] UKSC 23
- Lachaux v Independent Print Ltd and another [2019] UKSC 27
- JSC BTA Bank v Khrapunov [2018] UKSC 19
- Total Network SL (a company incorporated in Spain) (Original Respondents and Cross-appellants) v Her Majesty's Revenue and Customs (suing as Commissioners of Customs and Excise) (Original Appellants and Cross-respondents) [2008] UKHL 19
- Cream Holdings Limited and others (Respondents) v. Banerjee and others (Appellants) [2004] UKHL 44
- American Cyanamid Co v Ethicon Ltd [1975] AC 396
- London Borough of Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13
- The Racing Partnership Ltd & Ors v Sports Information Services Ltd [2020] EWCA Civ 1300
- Canada Goose UK Retail Ltd & Anor v Unknown Persons [2020] EWCA Civ 303
- Cuadrilla Bowland Ltd & Ors v Lawrie & Ors [2020] EWCA Civ 9
- Boyd & Anor v Ineos Upstream Ltd & Ors [2019] EWCA Civ 515
- The Mayor Commonalty and Citizens of London v Samede (St Paul's Churchyard Camp Representative) & Ors [2012] EWCA Civ 160
- London Borough of Islington v Elliott & Anor [2012] EWCA Civ 56
- R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955
- NATIONAL HIGHWAYS LIMITED v PERSONS UNKNOWN CAUSING THE BLOCKING OF, ENDANGERING, OR PREVENTING THE FREE FLOW OF TRAFFIC ON THE M25 MOTORWAY, A2, A20 AND A2070 TRUNK ROADS AND M2 AND M20 MOTORWAY, A1(M), A3, A12, A13, A21, A23, A30, A414 AND A3113 TRUNK ROADS AND THE M1, M3, M4, M4 SPUR, M11, M26, M23 AND M40 MOTORWAYS FOR THE PURPOSE OF PROTESTING & ORS. [2022] EWHC 1105 (QB)
- DPP v Cuciurean [2022] EWHC 736
- National Highways Ltd v Persons Unknown [2021] EWHC 3081 (QB)
- Birmingham City Council v Afsar & Ors [2019] EWHC 1560 (QB)
- Ineos Upstream v Persons Unknown [2017] EWHC 2945
- In re Hetherington, decd (Gibbs v McDonnell) [1990] Ch 1
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Cases citing this case
3 later cases · 3 positive
Most senior citing decisions:
- Arla Foods Limited & Anor v Persons Unknown [2024] EWHC 1952 (Ch) applied
- Esso Petroleum Company Limited v Scott Breen & Anor [2023] EWHC 2013 (KB) followed
- Esso Petroleum Company, Limited v Scott Breen & Ors [2022] EWHC 2664 (KB) applied
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