Three Counties Agricultural Society v Persons Unknown & Ors.

Where protest activity engages Convention rights, an interim injunction requires more than a serious question to be tried. The claimant must show that it would probably obtain a final injunction at the hypothetical trial. In applications against persons unknown, defendants must be identifiable and defined by reference to threatened unlawful conduct. The order must correspond to the threatened tort, be clear and precise, and have geographical and temporal limits. Lawful protest may be caught only where no proportionate alternative protects the claimant’s rights. The court must balance protestors’ rights with rights of access, public order and safety. Reliance on police enforcement does not necessarily provide an adequate alternative where the injunction protects private rights and prevents anticipated nuisance as well as criminal obstruction.

The claimant owned the Three Counties Showground, where an annual defence and security exhibition was due to take place. Previous protests had included peaceful campaigning, trespass, obstruction of access, lock-ons and structures erected at height. The claimant sought a precautionary injunction against persons unknown to prevent repetition.

The interested parties accepted that an injunction against trespassers was appropriate but opposed restrictions affecting the public highway and verges. The central issue was whether the proposed restrictions were necessary and proportionate having regard to Articles 10 and 11 of the European Convention on Human Rights, while protecting the claimant’s access and egress rights.

1. Applicable threshold. Section 37(1) of the Senior Courts Act 1981 empowers the High Court to grant an injunction where just and convenient. Although the ordinary test is that in American Cyanamid Co v Ethicon Ltd [1975] AC 396, the engagement of Convention rights attracts the more stringent test identified in Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100: the claimant must be likely to obtain a final injunction at a hypothetical trial.
2. Persons unknown and form of order. The requirements in Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303, [2020] 1 WLR 2802 were applicable. The defendants were sufficiently defined by reference to trespass, nuisance and interference with fencing and gates. The prohibited acts corresponded to the threatened torts and the order had clear geographical and temporal limits.
3. Convention rights and proportionality. The court considered the questions derived from DPP v Ziegler [2021] UKSC 23. Peaceful and lawful protest remained permitted, but the proposed restrictions on obstruction were proportionate to protecting access, preventing nuisance and intimidation, and reducing health and safety risks. The injunction was confined to the minimum terms necessary.
4. Police enforcement. The court declined to leave the highway issue solely to the police, distinguishing the police’s criminal-law function from the claimant’s private-law rights. The approach suggested in Esso Petroleum Co Ltd v Persons Unknown [2022] EWHC 1477 (QB) did not prevent an injunction where there was a real risk of continuing nuisance and physical confrontation.
5. Outcome. The evidence established a real and imminent risk that unlawful conduct would recur. The claimant was likely to obtain a final injunction, damages would be inadequate and the balance of convenience favoured relief. The order was made in the modified terms sought, effective from 23:59 on 30 October 2022 until the earlier of further order or 23:59 on 4 November 2022.