SHELL UK OIL PRODUCTS LIMITED v PERSONS UNKNOWN

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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. The order made by McGowan J was continued for up to one year, subject to further order, with adjustments to the notice requirements.