Esso Petroleum Company Limited v Scott Breen & Anor

A permanent injunction may restrain protestors where the claimant establishes a specific tort and a sufficiently real risk of repetition. In a conspiracy to injure by unlawful means, the unlawful acts need not themselves be actionable by the claimant, provided the conspiracy elements are established.

Injunctions against persons unknown must identify defendants by reference to unlawful conduct, use clear and precise terms, and have adequate geographical and temporal limits. Any interference with Articles 10 and 11 rights must be proportionate. Deliberate coercion, obstruction, trespass and property damage receive substantially less Convention protection than peaceful persuasion.

Esso sought a permanent injunction restraining unlawful protests connected with construction of its Southampton to London oil pipeline. The claim was framed as conspiracy to injure by unlawful means because much of the affected land and property belonged to third parties.

An interim injunction had previously been granted and continued after a contested return hearing before HHJ Lickley KC, whose judgment was reported as [2022] EWHC 2664 (KB). At the final hearing the defendants and interested parties did not appear. The issues were whether the tort was established, whether the requirements governing injunctions against persons unknown were satisfied, and whether the order disproportionately interfered with Articles 10 and 11 rights.

1. Application granted. The claimant established the tort of conspiracy to injure by unlawful means. The elements were an unlawful act, an intention to injure the claimant, an express or tacit agreement with one or more persons, and actual injury. The unlawful conduct need not be actionable in tort at the claimant’s suit. Conduct is unlawful for this purpose where the defendant had no legal right to use it.
2. The evidence of repeated trespass, damage, disruption, threats and public statements established both the conspiracy and the intention to impede construction and harm the claimant economically. The fact that some acts were directed at third-party land or property did not prevent reliance on the tort.
3. The requirements in Canada Goose UK Retail Ltd v Persons Unknown, including effective service, conduct-based identification, a sufficiently real and imminent risk, correspondence between prohibited acts and the threatened tort, clarity, and geographical and temporal limits, were satisfied. The order’s reference to the DCO Order Limits was sufficiently clear despite the project’s length and the movement of work sites.
4. The order was proportionate under Articles 10 and 11. It did not prohibit entry to the Order Limits or lawful protest as such. It targeted deliberate disruption, obstruction, trespass and damage. The claimant’s rights, the protection of contractors and the public, and the importance of maintaining fuel supplies provided sufficiently important aims. An injunction was rationally connected to those aims, no less restrictive effective measure was available, and a fair balance was struck.
5. The permanent injunction was granted until 31 December 2023. The court adopted the proportionality analysis in HS2 and HHJ Lickley KC’s earlier judgment.

The judgment records that an interim injunction was granted by Eyre J on 15 August 2022 and continued after HHJ Lickley KC’s judgment, reported as [2022] EWHC 2664 (KB) . The present court granted final relief.