National Highways Limited v Person Unknown & Anor

The Court of Appeal held that an application for a final anticipatory (quia timet) injunction does not require the claimant to prove that each defendant has already committed the tort alleged. The judge below had erred by treating the summary judgment rule (CPR Part 24) as demanding proof of past tortious liability against each named defendant before a final anticipatory injunction could be granted. The correct approach is to apply CPR Part 24.2: summary judgment may be given where the defendant has no real prospect of successfully defending the claim, taking into account the failure of defendants to file defences or evidence (CPR 24.5).

The court applied the established two-stage test for anticipatory injunctions (as explained in Vastint): (1) whether there was a strong possibility of imminent infringement of the claimant's rights and (2) whether the threatened harm would be grave and irreparable so that damages would be inadequate. Having accepted that those tests were met on the evidence before the judge, the Court of Appeal allowed the appeal and granted a final injunction against the 109 named defendants and against persons unknown, but expunged an isolated reference to "tunnelling within 25m of the Roads" because there was no evidence of such conduct.

Background and parties

National Highways Limited (NHL), the highways authority for the Strategic Road Network under section 1A of the Highways Act 1980, sought final injunctive relief in response to a series of Insulate Britain (IB) protests in 2021 which involved protesters obstructing motorways and other roads. NHL pleaded trespass, private nuisance and public nuisance and obtained interim injunctions against persons unknown; disclosure from police led to 133 named defendants being added as arrested participants.

Procedural posture

• NHL pursued contempt proceedings against some defendants; 24 were found in contempt and final injunctions were granted against them by the judge below.
• By a summary judgment application (CPR Part 24) and a concurrent application for a final anticipatory (quia timet) injunction, NHL sought final orders against the remaining named defendants (109) and persons unknown until April 2025, relying on prior protests and public statements indicating future actions.
• The judge below (Bennathan J) granted final injunctions against the 24 contemnors, but refused final relief against the remaining 109 named defendants (granting an interim injunction instead). The judge treated summary judgment as requiring proof of past tortious acts by each defendant.

Issues framed

1. Whether summary judgment under CPR Part 24 could be used to obtain a final anticipatory injunction where the tort is threatened but not already established against every defendant.
2. Whether NHL had established, on the evidence before the court, a real and imminent risk of trespass and nuisance by the remaining named defendants and persons unknown, and whether damages would be an adequate remedy.
3. Whether any terms of the injunction were disproportionate or uncertain (including the reference to "tunnelling within 25m of the Roads").

Court’s reasoning and decision

The Court of Appeal concluded that the judge below had applied the wrong legal test. An anticipatory injunction does not require proof that each defendant has already committed the tort; rather the correct inquiry is whether the defendants have no real prospect of successfully defending the claim (CPR 24.2), with proper weight given to any failure to file defences or evidence (CPR 24.5). The appellate court accepted that NHL’s evidence established a real and imminent risk of the threatened torts and that damages would often be inadequate given the scale and nature of disruption. The court therefore allowed the appeal in respect of the 109 named defendants and persons unknown and granted the final injunction sought, subject to excision of the reference to "tunnelling within 25m of the Roads" because that conduct had neither occurred nor been threatened in the evidence. The Court further noted the review mechanism in the order and the ongoing uncertainty as to the Supreme Court’s then-pending consideration of Barking about final injunctions against persons unknown.

Wider implications: the judgment clarifies that quia timet injunctions (interim or final) are concerned with threatened torts and that summary judgment may be used to obtain final prohibitory anticipatory injunctions where defendants have no realistic prospect of defending the claim.

Appeal allowed. The judge below erred in treating summary judgment as requiring proof that each defendant had already committed the torts alleged. The correct test for summary judgment (CPR 24.2) is whether the defendants have no real prospect of successfully defending the claim; the defendants' failure to file defences or evidence was material under CPR 24.5. On the evidence there was a real and imminent risk of trespass and nuisance so as to justify a final anticipatory injunction against the 109 named defendants and persons unknown; an isolated reference to "tunnelling within 25m of the Roads" was expunged for lack of evidential foundation.

Appeal from Bennathan J in the High Court (King's Bench Division), [2022] EWHC 1105 (QB); permission to appeal granted by Whipple LJ; judgment of the Court of Appeal: [2023] EWCA Civ 182.