HS2 (HIGH SPEED TWO LIMITED) & Anor v WILLIAM HAREWOOD & Ors

In civil contempt proceedings, the court must assess culpability and the harm caused, intended or likely to result from the breach. It must then consider all relevant circumstances, including cooperation, admissions, apology, insight, antecedents and personal mitigation. Imprisonment is reserved for cases passing the custody threshold, particularly serious and contumacious flouting of court orders, and must be no longer than necessary to reflect gravity and achieve punishment, compliance and rehabilitation.

Conscientious protest may justify a discount, but it does not license breach of court orders. The extent of any discount depends on conscientiousness, insight, the conduct involved, the objector’s history and engagement with the court process. A persons-unknown injunction may bind a person who was not named, where that person enters or remains on the land with knowledge of the order.

HS2 and the Secretary of State for Transport obtained possession of Cash’s Pit Land and an interlocutory prohibitory and mandatory injunction from Cotter J on 11 April 2022. The injunction required named defendants and persons unknown to leave the land, prohibited re-entry and interference with HS2 works, and prohibited tunnelling.

The claim concerned alleged breaches by seven protesters. Most admitted the pleaded breaches; two defendants failed to attend and their breaches were determined in their absence. One defendant, Elliott Cuciurean, also argued that the injunction did not bind him because he was named in a wider track-wide action but not as a named Cash’s Pit defendant. The court therefore had to determine both the scope of the injunction and the appropriate sanctions.

1. Injunction application dismissed. Cuciurean’s unpleaded and procedurally late application was rejected. On the merits, the injunction bound two categories: named Cash’s Pit defendants and persons unknown who were already unidentified on the site or later entered or remained there with knowledge of the order. A person named in a wider action could nevertheless fall within the persons-unknown category for the site-specific injunction. The injunction was clear on its natural and ordinary interpretation. The expressio unius principle did not exclude the persons-unknown category. The alternative argument based on interference with the administration of justice did not require determination.
2. Under [2021] EWHC 3078, the court applied the established civil-contempt framework. It assessed culpability and harm, then considered the full circumstances, including deliberateness, prejudice, cooperation, admissions, apology, insight, antecedents and personal mitigation. The purpose of sanction was punishment, securing future compliance and rehabilitation.
3. The four tunnel occupants deliberately and seriously flouted the injunction. Their conduct caused substantial public expense, delayed construction and created risks to themselves, emergency workers and enforcement staff. The custody threshold was crossed. Fines alone were insufficient. Imprisonment terms were imposed, with reductions for mitigation where appropriate. Harewood and Walters received suspended terms; Cuciurean received an immediate term; Wright, who did not attend and provided no mitigation, received an immediate term and a warrant was issued.
4. For conscientious objectors, the court applied the guidance in Cuadrilla v PU. Any discount depended on conscientiousness, insight, the activity undertaken, history, dialogue with the court and engagement with the proceedings. Under Attorney General v Crossland, conscientious motives did not provide a licence to flout court orders. Harewood’s sincere remorse and engagement justified suspension; Cuciurean’s repeated contempts, lack of insight and continuing disregard for court orders did not.
5. The remaining sanctions included fines and imprisonment. Buchan received a £1,500 fine and 100 days’ imprisonment. Wright received a £3,000 fine and 332 days’ imprisonment. Harewood received a £3,000 fine and 184 days’ imprisonment suspended for two years. Walters received a £2,000 fine and 156 days’ imprisonment suspended for two years. Cuciurean received a £3,000 fine and 268 days’ imprisonment without suspension.