Shell UK Limited v Persons Unknown

In proceedings for precautionary injunctions against Persons Unknown, non-parties may apply under CPR 40.9 where the order is prima facie capable of materially and adversely affecting a recognised legal interest and they have a good point to raise. The court should adopt a flexible and generous approach given the breadth and potentially serious consequences of such injunctions.

An injunction may be continued where there is a serious issue to be tried, damages are inadequate, the cross-undertaking is sufficient, and there is a real and imminent risk of grave harm. Restrictions on protest are lawful where they correspond to the threatened tort, are sufficiently clear and geographically and temporally limited, and are necessary and proportionate under Articles 10 and 11.

Three Shell companies applied to extend interim injunctions granted in May 2022 against Persons Unknown in relation to an oil refinery, an office tower and Shell-branded petrol stations. The injunctions restrained trespass, nuisance, damage, obstruction and conduct allegedly amounting to conspiracy to injure by unlawful means.

Jessica Branch, an environmental activist, sought permission to make submissions without being joined as a defendant. The petrol-stations claimant also sought to amend the description of the Persons Unknown defendants, permission for alternative service, and third-party disclosure from the police. The central issues concerned CPR 40.9, the requirements for continuing precautionary injunctions, the interaction with Articles 10 and 11 and section 12 of the Human Rights Act 1998, and the identification and service of Persons Unknown.

1. CPR 40.9. Ms Branch was directly affected because the injunctions were prima facie capable of materially and adversely affecting her Articles 10 and 11 rights, financial interests and exposure to committal proceedings. She also had good points concerning proportionality, the underlying tort and the wording of the orders. The court therefore permitted her to apply to vary or set aside the existing injunctions without joining her as a defendant. In Persons Unknown cases, CPR 40.9 may be used at a review hearing to address proposed renewal or variation as well as the existing order.
2. Continuing injunctions. The Haven and Tower claims raised serious issues in trespass and private nuisance. The petrol-stations claim raised a serious issue in conspiracy to injure by unlawful means. Trespass to land, trespass to goods and nuisance could constitute the unlawful means even where the claimant could not itself sue in those torts. A breach of statutory duty was left undecided. The evidence established a real and imminent risk of repetition, and damages were inadequate. The cross-undertakings in damages adequately protected the defendants.
3. Scope and proportionality. The prohibited acts corresponded to the threatened torts. The petrol-stations injunction was to be read as limited by the requirements of damage, agreement and intention to disrupt fuel supply. The orders were sufficiently clear, subject to removing duplicative provisions and clarifying the geographical scope. The restrictions were necessary and proportionate under Articles 10 and 11. Peaceful protest near the sites remained permissible.
4. Section 12(3) of the Human Rights Act 1998. The injunctions involved publication, at least insofar as they prohibited writing. The statutory likelihood test therefore applied to that aspect, and was satisfied because the claimants were likely to succeed at trial.
5. The petrol-stations claimant was permitted to amend the defendant description, extend the injunctions for up to one year, serve by alternative means and obtain third-party disclosure under CPR 31.17. The orders were subject to review and modification.