The National Highways Limited v Persons Unknown & Anor.

A final anticipatory injunction may be granted where the claimant establishes a real and imminent risk of threatened tortious conduct and the defendant has no real prospect of successfully defending the claim. On a review of an injunction, the court must reassess the continuing risk and consider each named defendant individually. A suitable undertaking may justify removing a defendant from the injunction for the future, without compromising accrued rights or costs liabilities. Alternative service is permissible where the proposed method can reasonably be expected to bring the order to the attention of affected persons. Courts must balance protest rights against the rights of other road users and must not determine the merits of the political cause.

The claimant sought continuation and variation of final injunctions restraining disruptive protests on the strategic road network. The injunctions originated in three proceedings concerning protests on the M25, Kent strategic roads and feeder roads. They had been continued by Mr Justice Bennathan and converted into final injunctions by the Court of Appeal in NHL v Persons Unknown, [2023] EWCA Civ 182.

The review concerned continuation of the injunctions, amendments to the defendant schedule, alternative service, costs, and continuation of police disclosure obligations. The central questions were whether a continuing real and imminent risk remained, how the position of individual defendants should be assessed, and whether the existing service and disclosure arrangements remained justified.

1. Continuation of the injunction. The court reviewed the merits and continuing entitlement to relief. The continuing public statements and activities of Insulate Britain and the Just Stop Oil coalition established that many individuals associated with those groups still posed a real and imminent risk of serious disruption to the strategic road network. The absence of recent protests did not establish that the underlying risk had disappeared, particularly where the injunction had itself deterred conduct.
2. Individual assessment and undertakings. The court held that named defendants could not be treated as a homogeneous group. The evidence concerning Virginia Morris, Rebecca Lockyer and Giovanna Lewis justified removing or provisionally removing them from the injunction. Other defendants were given the opportunity to provide a formal two-year undertaking not to engage in the prohibited conduct. An accepted undertaking regulated the future position and did not settle or compromise accrued rights or existing costs liabilities.
3. Balancing protest rights. The court endorsed the fact-sensitive balancing exercise described in City of London Corporation v Samede, [2012] PTSR 1624. Relevant considerations included the legality of the conduct, the importance of the location to protesters, duration, occupation of the land, and the extent of interference with others. The court could not adjudicate on the merits of the political cause.
4. Service. In light of extensive publicity and constructive knowledge among potential protesters, the former restriction that persons unknown would not be bound until personal service was no longer appropriate. Alternative service was authorised for persons unknown and named defendants under CPR rules 6.15 and 6.27, with additional protection for defendants in custody.
5. Costs and disclosure. The 109 defendants remained liable for the earlier costs in accordance with the existing order, but the payment on account was limited to £1,500 pending detailed assessment. The successful claimant obtained the review-hearing costs against relevant defendants. The police disclosure obligation was not continued indefinitely without further submissions addressing the legal basis for disclosure of future arrest information and personal data.

1. Court of Appeal: The earlier order was varied by the Court of Appeal, which allowed the claimant’s appeal and made final injunctions against the named defendants and persons unknown, subject to removal of the reference to tunnelling: [2023] EWCA Civ 182.
2. High Court (King's Bench Division): On review, the injunction was extended against defendants who did not provide an undertaking, with individual defendants removed or provisionally removed and the service, costs and disclosure arrangements varied.