National Highways Limited v Person Unknown & Anor

A final prohibitory quia timet injunction may be granted where a threatened tort creates a strong possibility of imminent infringement and grave, irreparable harm. The claimant need not prove that each defendant has previously committed the threatened tort. The same substantive test applies to final and interim prohibitory anticipatory injunctions.

On summary judgment, the court must apply the ordinary no-real-prospect test. A defendant's failure, despite ample opportunity, to serve a defence or evidence may demonstrate that no realistic defence exists. The court must not speculate about a possible defence. Injunctive terms must also be supported by evidence of a past or threatened wrong.

National Highways sought final anticipatory injunctions to restrain named Insulate Britain protesters and persons unknown from obstructing roads in the Strategic Road Network. The protests had involved sitting or gluing themselves to motorway and road surfaces, causing danger and serious disruption.

Bennathan J, in the High Court, granted final injunctions against 24 defendants found in contempt but only interim injunctions against 109 other named defendants and persons unknown: [2022] EWHC 1105 (QB). He considered that final relief required proof that each named defendant had already committed a pleaded tort.

National Highways appealed. The central issue was whether a final anticipatory injunction, and summary judgment for it, required proof of a completed tort by every defendant.

Decision

1. Appeal allowed. The judge had correctly identified the test for an anticipatory injunction, but erred by requiring National Highways to prove that each named defendant had already committed trespass or nuisance before final relief could be granted.
2. A prohibitory anticipatory injunction addresses a threatened wrong, while the claimant's cause of action remains incomplete. There is no distinction between final and interim prohibitory injunctions in the applicable test. Following Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch), the court held that prior commission of the tort is not a necessary criterion for final relief.
3. The correct summary-judgment inquiry under CPR 24.2 was whether the defendants had a real prospect of successfully defending the claim. The 109 named defendants had been given ample opportunity to serve defences and evidence, but did not do so. Their silence was highly relevant and showed no realistic defence. The judge was not entitled to speculate about an unarticulated defence; that was the impermissible approach identified in King v Stiefel [2021] EWHC 1045 (Comm).
4. The court also granted final relief against persons unknown. It treated London Borough of Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13 as the current law, permitting a final injunction against unknown and unidentified newcomers. The forthcoming High Court review could address the consequences of any later Supreme Court decision in that litigation.
5. The words prohibiting tunnelling within 25 metres of the roads were removed. There was no evidence that such conduct had occurred or been threatened. Subject to that deletion, final injunctions were granted in the terms sought.

The court additionally observed that pedestrians were prohibited from being on a motorway, save in an accident or emergency, by regulation 15 of the The Motorways Traffic (England and Wales) Regulations 1982. That provision had not, however, been relied on by National Highways.

• Court of Appeal (Civil Division): Allowed National Highways' appeal and granted final injunctions against the remaining named defendants and persons unknown, subject to deleting the tunnelling term: [2023] EWCA Civ 182.
• High Court of Justice, King's Bench Division: Bennathan J granted final injunctions against 24 contemnor defendants, but granted only interim injunctions against the other named defendants and persons unknown: [2022] EWHC 1105 (QB).