Esso Petroleum Company, Limited v Scott Breen & Ors

An interim injunction restraining protest activity may be granted where the claimant shows a serious issue to be tried, inadequate damages, a sufficiently real and imminent risk of harm, and proportionate, clear and geographically and temporally limited terms. Unlawful-means conspiracy is available even where the underlying unlawful conduct is not independently actionable by the claimant, provided the necessary intention to injure and agreement are established. Demonstrative trespass and criminal damage during a protest are not necessarily “publication” for the purposes of section 12(3) of the Human Rights Act 1998. Deliberate disruption causing more than minimal interference is not at the core of Articles 10 and 11 rights. The injunction was continued for four months, subject to amendment and directions towards trial.

Esso sought continuation of an interim injunction granted by Eyre J and amended by Ritchie J. The injunction restrained specified acts by named and unnamed defendants intended to prevent or impede construction of the Southampton to London Pipeline.

The proceedings arose from repeated protests, trespass, obstruction and property damage along the pipeline route. Interested persons wished to continue peaceful protests and challenged the injunction’s scope, its effect on Articles 10 and 11 of the European Convention on Human Rights, the application of section 12(3) of the Human Rights Act 1998, the clarity of the terms, and the need for protection across the whole route.

1. Disposition. The claimant succeeded. The interim injunction was continued for four months, with amendments requiring conduct to be carried out with the intention of causing damage to the claimant by preventing or impeding construction. The encouragement wording in paragraph 5(B) was deleted.
2. Cause of action. The essential ingredients of unlawful-means conspiracy were an unlawful act, intention to injure the claimant, agreement with one or more persons, and actual injury. The authorities supported the conclusion that the unlawful means need not themselves be actionable by the claimant. The pleaded tort was therefore available and there was a serious issue to be tried.
3. Freedom of expression. The prohibited conduct involved trespass, obstruction and criminal damage, rather than publication. Section 12(3) of the Human Rights Act 1998 therefore did not apply. In any event, the claimant was likely to establish its claim in relation to the restrained activity.
4. Proportionality. Applying the structured proportionality questions identified in DPP v Ziegler, the court found a legitimate and important aim, a rational connection, no less restrictive effective alternative, and a fair balance. The protests were organised and widespread, involved unlawful conduct and significant disruption, and presented a real intention and risk of repetition. Peaceful communication remained possible outside the restrained conduct.
5. Scope and clarity. Protection of the entire DCO route was justified because work moved along the route and a patchwork of orders would be impractical. The order was sufficiently clear, and unnamed defendants were identifiable by reference to their conduct. The parties were directed to agree trial directions, with costs dealt with on the papers if necessary.

The judgment records no appeal. It concerned the return date of an interim injunction granted by Eyre J on 15 August 2022 and amended by Ritchie J on 8 September 2022.