National Highways Limited v Charlotte Kirin & Ors

For contempt arising from breach of an injunction against Persons Unknown, valid personal or alternative service supplies the required notice. The claimant need not prove that the defendant had actual knowledge before the prohibited conduct. Lack of actual knowledge is relevant to penalty, and the defendant bears the civil burden of proving it. Where the defendant proves no knowledge of the injunction at the relevant time, the breach is technical and no penalty should be imposed. Where knowledge is acquired during the prohibited conduct, liability may arise for remaining in breach thereafter, but the absence of prior knowledge substantially reduces culpability. Sanctions for knowing contempt are fact-sensitive and must address culpability, harm, compliance and rehabilitation.

National Highways Limited applied to commit 12 Just Stop Oil protesters for contempt of court. The applications concerned alleged breaches of an injunction made against Persons Unknown restraining entry onto, remaining on, or affixing themselves to structures on the M25.

Ten defendants disputed having knowledge of the injunction before reaching the gantries. Four defendants were alleged to have received notice from police officers while on the gantries. Two defendants accepted, or were treated as having, knowledge before their conduct. The court first determined whether actual knowledge was required for liability and who bore the burden concerning knowledge, then assessed the evidence and sanctions.

1. The court followed the binding approach in Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357, together with Cuadrilla Bowland v Persons Unknown [2020] EWCA Civ 9. For contempt by breach of an order prohibiting particular conduct, the claimant must prove to the criminal standard that the defendant, having received notice of the order, performed the prohibited act intentionally and knew the facts making the act a breach. Notice in this context is equivalent to service. There is no additional requirement to prove actual knowledge before liability is established.

2. The distinction between notice and knowledge was not altered by London Borough of Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13, which concerned the status of newcomers to proceedings rather than the ingredients of contempt liability. The order for alternative service had not been set aside, and the claimant had complied with it.

3. Actual knowledge remained relevant to penalty. A defendant who proves, on the civil standard, absence of knowledge of the injunction and its material terms may avoid penalty for the resulting technical breach. The same burden applies to the safeguard concerning penalty as to an application to set aside alternative service. Six defendants established that they had no knowledge before acting, and no penalty was imposed on them.

4. Four defendants acquired knowledge when police officers read the injunction to them on the gantries. They were liable for knowingly remaining in breach after notice, but their culpability was substantially less because they lacked prior knowledge. The court recorded the contempt but imposed no penalty.

5. For the two defendants who acted with knowledge, the court applied the sanction principles summarised in NHL v Heyatawin [2021] EWHC 3078 (QB). Culpability and harm were high, but conscientious motives, admissions, apologies, personal circumstances and undertakings justified suspended committal orders: 40 days for Mair Bain and 80 days for Theresa Norton, each suspended for two years on compliance terms.

First-instance decision. The judgment records that an application to stay the contempt proceedings pending criminal trials had previously been refused on 31 July 2023.