Exolum Pipeline System Limited & ORS v Persons Unknown

A newcomer injunction against persons unknown may be continued only where there is a compelling need, demonstrated by evidence, to protect the claimant’s rights. The court must assess the likelihood and seriousness of the anticipated harm, give full weight to protesters’ rights under Articles 10 and 11, and ensure that the order is proportionate and no longer than necessary. The compelling-need test is higher than the balance-of-convenience approach in American Cyanamid Co v Ethicon [1975] AC 396; where compelling need is established, a separate balance analysis may add nothing. Periodic review remains good practice. The evidence of renewed dangerous protest risk at hazardous sites satisfied the test, so the injunction was continued.

The claimants brought a Part 8 claim in April 2022 for a newcomer injunction against persons unknown following dangerous protests at seven oil and chemical terminals. Johnson J granted interim relief. Bennathan J later granted narrower injunctive relief and a non-party disclosure order. Soole J continued the injunction at the first review on 23 January 2023 and directed a further review.

At the second review the defendants did not appear. The claimants relied on continuing risk, the deterrent effect of the order and the absence of any basis for discharge. The court considered whether the framework in Wolverhampton City Council and Others v London Gypsies and Travellers and Others [2023] UKSC 47 justified continuation, and whether the order remained proportionate and subject to an appropriate review period.

The injunction was continued until the next review, which was to be listed on the first available date after 20 February 2025. Notice requirements in the draft order were maintained.

1. Applicable framework. The court applied the newcomer-injunction principles explained in Wolverhampton City Council and Others v London Gypsies and Travellers and Others [2023] UKSC 47, including the requirement for a compelling need in protester cases. The duration and geographical scope of the order remained matters for the judge. The court did not treat the Supreme Court’s guidance on appropriate and early review as confined to traveller injunctions.
2. Compelling need and interim-injunction principles. Compelling need was a high threshold requiring a fact-sensitive assessment of the evidence, the risk of renewed activity and the seriousness of the potential harm. The court accepted that a separate balance-of-convenience exercise under American Cyanamid Co v Ethicon [1975] AC 396 would add nothing where compelling need was established. On the facts, the other familiar requirements were also met.
3. Convention rights and safeguards. The court kept firmly in mind the public interest in freedom of expression and legitimate protest under Articles 10 and 11 of the Convention. Procedural steps had been taken to notify affected persons and enable an application to discharge or vary the injunction. The review was substantive rather than a rubber stamp, and the court examined proportionality and whether the duration remained necessary.
4. Application. There was a continuing risk of renewed protest, including activity at hazardous sites capable of causing property damage, explosion and serious injury or death. Earlier protesters had breached a site perimeter and engaged in dangerous conduct. The court found a compelling need for continuation and had no reason to discontinue or vary the order. An 18-month review period risked drift, so an earlier review was directed.

• 6 April 2022: Johnson J granted an interim newcomer injunction.
• 29 April 2022: Bennathan J granted narrower injunctive relief and made a non-party disclosure order.
• 23 January 2023: Soole J reviewed and continued the injunction, directing a further review in February 2024.
• 20 February 2024: Farbey J conducted the second review and continued the injunction until the next review.