Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
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Key cases cited
25 authorities cited.
- Director of Public Prosecutions v Ziegler and others [2021] UKSC 23
- Lachaux v Independent Print Ltd and another [2019] UKSC 27
- JSC BTA Bank v Khrapunov [2018] UKSC 19
- Total Network SL (a company incorporated in Spain) (Original Respondents and Cross-appellants) v Her Majesty's Revenue and Customs (suing as Commissioners of Customs and Excise) (Original Appellants and Cross-respondents) [2008] UKHL 19
- Cream Holdings Limited and others (Respondents) v. Banerjee and others (Appellants) [2004] UKHL 44
- American Cyanamid Co v Ethicon Ltd [1975] AC 396
- Attorney General’s Reference on a Point of Law No 1 of 2022 [2022] EWCA Crim 1259
- London Borough of Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13
- The Racing Partnership Ltd & Ors v Sports Information Services Ltd [2020] EWCA Civ 1300
- Canada Goose UK Retail Ltd & Anor v Unknown Persons [2020] EWCA Civ 303
- Cuadrilla Bowland Ltd & Ors v Lawrie & Ors [2020] EWCA Civ 9
- Boyd & Anor v Ineos Upstream Ltd & Ors [2019] EWCA Civ 515
- Mohamed & Ors v Abdelmamoud & Anor [2018] EWCA Civ 879
- The Mayor Commonalty and Citizens of London v Samede (St Paul's Churchyard Camp Representative) & Ors [2012] EWCA Civ 160
- Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23
- Rowe & Ors v Fryers & Anor [2003] EWCA Civ 655
- Esso Petroleum Company Limited v Scott Breen & Ors [2022] EWHC 2600 (KB)
- NATIONAL HIGHWAYS LIMITED v PERSONS UNKNOWN CAUSING THE BLOCKING OF, ENDANGERING, OR PREVENTING THE FREE FLOW OF TRAFFIC ON THE M25 MOTORWAY, A2, A20 AND A2070 TRUNK ROADS AND M2 AND M20 MOTORWAY, A1(M), A3, A12, A13, A21, A23, A30, A414 AND A3113 TRUNK ROADS AND THE M1, M3, M4, M4 SPUR, M11, M26, M23 AND M40 MOTORWAYS FOR THE PURPOSE OF PROTESTING & ORS. [2022] EWHC 1105 (QB)
- Esso Petroleum Co Ltd v Persons Unknown [2022] EWHC 1477 (QB)
- TfL v Lee [2022] EWHC 3102
- DPP v Cuciurean [2022] EWHC 736
- Birmingham City Council v Afsar & Ors [2019] EWHC 1560 (QB)
- Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch)
- Ineos Upstream v Persons Unknown [2017] EWHC 2945
- Murat Vural v Turkey App. No. 9540/07
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Cases citing this case
3 later cases · 3 caution
Most senior citing decisions:
- Gary Jones v Persons Unknown [2026] EWCA Civ 1212 distinguished
- Gary Jones v Persons Unknown & Ors [2025] EWHC 977 (Comm) explained
- Ras Al Khaimah Investment Authority v Farhad Azima & Ors [2023] EWHC 2108 (Ch) explained
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