High Speed Two (HS2) & Anor. v Four Categories of Persons Unknown & Ors.

An interim injunction may protect an extensive infrastructure route from anticipated trespass and nuisance where the claimant is likely to establish the torts at trial and the evidence shows a real and imminent risk of their continuation. A statutory right to immediate possession supplies sufficient title to sue in trespass; actual occupation is unnecessary.

Persons unknown must be defined by identifiable unlawful conduct. The prohibitions, geographical limits, duration and alternative service must be clear and proportionate. Articles 10 and 11 confer no general right to protest on private land. Restrictions affecting protest on public highways require a fact-sensitive proportionality assessment, balancing freedom of protest against property rights, safety, the rights of others and the public interest.

The claimants were responsible for delivering and constructing the HS2 railway under powers conferred by Parliament. They sought a route-wide injunction against named defendants and four categories of persons unknown. The proposed order restrained entry upon HS2 land, obstruction of access and interference with perimeter fencing or gates. It expressly preserved lawful use of highways and public rights of way.

The claimants alleged persistent trespass and nuisance by itinerant protesters, including obstruction, property damage, tunnelling and interference with construction. The defendants disputed the claimants’ possessory title, the imminence of future harm, the definitions of persons unknown, the proposed service arrangements and the order’s compatibility with Articles 10 and 11 of the European Convention on Human Rights.

The application sought final relief, but the court treated it as an application for an interim injunction because named defendants might contest liability at trial.

1. Application granted. The court granted an interim route-wide injunction, subject to amendments requiring deliberate obstruction and deliberate slow walking. The order was to expire on 31 May 2023 unless varied, discharged or extended, and was subject to periodic review.

2. The claimants had sufficient title to sue in trespass throughout the identified land. Powers under the High Speed Rail (London - West Midlands) Act 2017 and the High Speed Rail (West Midlands - Crewe) Act 2021, coupled with service of the prescribed notices, gave an immediate right to possession. Actual occupation was unnecessary; a better right to possession than the alleged trespasser was sufficient.

3. The extensive evidence established numerous instances of trespass and nuisance, including obstruction of access, occupation of construction land, damage, tunnelling and interference with vehicles and equipment. Protesters’ repeated conduct and expressed intention to move between sites demonstrated a real and imminent risk of continued tortious activity. Imminence concerns prematurity and must be assessed contextually. The claimants were not required to wait until work began on each parcel or until harm occurred there.

4. The claimants were more likely than not to obtain a final injunction at trial. Damages were inadequate and the balance of convenience strongly favoured relief. The definitions of persons unknown identified defendants by unlawful conduct and were sufficiently narrow. The prohibited acts corresponded to the threatened torts and the geographical breadth was justified by the mobile, route-wide nature of the protests.

5. The order did not prohibit lawful protest. Articles 10 and 11 confer no general freedom to protest on private land or publicly owned land from which the public is excluded. To the extent that the order affected protest on highways or other public land, it pursued legitimate aims and was proportionate. It protected possessory and property rights, safety, access, public funds and the lawful construction of infrastructure authorised by Parliament. There was a rational connection between the restrictions and those aims, no effective less restrictive alternative, and a fair balance between the competing interests.

6. The proposed alternative service was reasonably calculated to bring the proceedings and order to the attention of potential defendants. It combined notices at relevant sites, newspaper advertisements, libraries or parish noticeboards, social media, a dedicated website and personal service where practicable.

This was a first-instance application. Cotter J had previously granted a possession order and injunction concerning Cash’s Pit on 11 April 2022 and adjourned the route-wide application. On 28 April 2022 the court directed additional methods of alternative service. The present court granted the route-wide interim injunction.