Esso Petroleum Company Limited v Scott Breen & Ors

Permission under CPR rule 40.9 may be granted to a non-party directly affected by an injunction where the person has a good point to raise. The court should then assess whether the person must join as a party or may participate as an interested person.

Relevant factors include the person’s connection with the litigation, any financial or other benefit, control or funding, the effect on civil rights, the public interest in the issue, the breadth and severity of an injunction against persons unknown, costs risks, and prejudice to the claimant. Wide-ranging injunctions engaging protest and civil-liberties rights justify a relatively low threshold for participation.

The claimant sought injunctive relief against named and unknown persons alleged to threaten or interfere with construction of a pipeline. An ex parte injunction had been granted against the first defendant and persons unknown.

Two environmental protestors, who were not parties, sought permission to make representations on the return date under CPR rule 40.9 and to seek variation or discharge of the injunction. The claimant argued that they should become defendants if they wished to participate. The court determined only their status and adjourned the remaining issues concerning the injunction to the full return hearing.

1. Outcome. The interested persons were permitted to make representations at the return date under CPR rule 40.9. The costs of the application were reserved.
2. Gateway. A non-party must show that he or she is directly affected by the judgment or order and has a good point to raise. Direct effect may arise through financial interests, property or possession rights, ability to work or travel, private or social life, or rights under the Human Rights Act and the European Convention on Human Rights.
3. Factors. If the gateway is satisfied, the court should decide whether participation requires joinder. Relevant considerations are whether the interested person will benefit from the litigation; whether he or she controls or funds it; whether the outcome may adversely affect civil rights or other interests; whether a substantial public-interest or civil-liberties issue is raised; the geographical or temporal breadth and draconian nature of an injunction against persons unknown; the costs risks and practical difficulties of participation; and prejudice to the claimant.
4. The distinction between party status and participation under CPR rule 40.9 is materially affected by costs. A party faces ordinary costs risks, whereas costs against a non-party are exceptional and engage CPR rule 46.2(1) and section 51 of the Senior Courts Act 1981. The nature and degree of the person’s connection with the proceedings is relevant both to participation and to possible costs liability.
5. The interested persons were directly affected because the injunction could constrain their intended lawful protests and expose them to contempt consequences. They raised potentially good points concerning the scope of the injunction, including its effect on protest and Convention rights. Their public-interest arguments, the breadth of the order against persons unknown, reduced access to funding, and absence of demonstrated prejudice justified permitting participation without requiring joinder.