VALERO ENERGY LIMITED v PERSONS UNKNOWN

An anticipatory injunction against persons unknown requires a strong possibility of imminent interference with the claimant’s rights and a prospect of harm so grave and irreparable that damages would be inadequate. The order must correspond to the threatened tort and be clear enough for affected persons to understand what is prohibited. In protest cases, the court must accommodate Articles 10 and 11 rights and should not prohibit conduct which might be lawful after a fact-sensitive assessment under Director of Public Prosecutions v Ziegler, unless no other proportionate protection is available. Trespass injunctions may nevertheless be justified where the conduct falls within aggravated trespass and the Convention rights do not generally confer a right to trespass. The court should avoid treating civil injunctions as a substitute for criminal adjudication where the legality of road obstruction depends on the circumstances.

The claimants, a group of companies operating an oil refinery and fuel terminals, sought a further interim injunction against unidentified environmental protestors. The proposed order addressed trespass, obstruction of access roads and interference with traffic at seven sites. Earlier interim relief had been granted, but the court had limited evidence because confidential police intelligence could not be relied upon.

The application was heard without the defendants being represented, although submissions were received from solicitors acting for an individual associated with Extinction Rebellion. The central issues were whether the anticipatory injunction test was satisfied, how the claimants’ property rights should be balanced against protestors’ Convention rights, and whether the order should prohibit all blocking or obstruction of access roads.

1. Interim injunction test. The court applied the established principles in American Cyanamid Co v Ethicon Ltd and the heightened anticipatory-injunction test summarised in Vastint Leeds BV v Persons Unknown. There had to be a strong possibility of imminent infringement and a prospect of harm so grave and irreparable that damages would be inadequate.
2. The threshold was met for prohibitions on trespass and specified semi-permanent obstruction. The threatened conduct gave the claimants a strong case in trespass and private and public nuisance. The scale of the oil operations, the difficulty of recovering damages from unidentified protestors and the danger posed by flammable or explosive materials justified relief.
3. Orders against persons unknown had to be cautious, clear and precise. The prohibited acts had to correspond to the threatened tort. The requirements stated in Ineos Upstream Ltd v Persons Unknown and reformulated in Canada Goose Retail Ltd v Persons Unknown were applied.
4. The court refused to prohibit every form of blocking, slowing or obstructing access roads. Under Director of Public Prosecutions v Ziegler, the lawfulness of highway obstruction may depend on a fact-sensitive assessment of Articles 10 and 11 rights and the statutory lawful-excuse defence under section 137 of the Highways Act 1980. An injunction imposing imprisonment for conduct whose lawfulness could only be determined after that assessment would destroy the statutory balance. Such matters should ordinarily be left to the police and Magistrates’ Courts.
5. DPP v Cuciurean did not establish an absolute rule that protest rights could never justify conduct otherwise unlawful. Nor did the court’s approach encourage road blocking. A future case might justify a broader order if subsequent events supplied the necessary evidence.
6. The court also refused an order requiring protestors to leave when directed by a police constable, because it duplicated existing criminal powers and impaired clarity. Disclosure directions to the relevant police forces were granted, subject to confidentiality protections.