Valero Energy Ltd & Ors v Persons Unknown & Ors

A final anticipatory injunction may be granted against named protesters, persons unknown and newcomers where there is compelling evidence of a real and imminent threat of unlawful conduct and no realistic defence. The court must treat an unopposed persons-unknown application as effectively without notice and examine reasonably foreseeable defences itself.

The remedy requires compelling justification, full and frank disclosure, precise identification of prohibited conduct and geographical limits, proportionate interference with Convention rights, effective notice, liberty to apply and periodic review. Prior commission of the threatened tort is unnecessary. A multi-year order may be justified by evidence of a continuing campaign, provided annual review safeguards affected persons.

Petrochemical companies sought summary judgment and a final anticipatory injunction against 17 named defendants, persons unknown and newcomers connected with four environmental protest movements. The claim concerned threatened trespass, damage and public and private nuisance at eight oil refineries and terminals and their access roads.

Interim injunctions had operated since March 2022. Despite the first order, protesters entered the Kingsbury terminal, climbed fuel tanks and tankers, obstructed roads and excavated tunnels. Later activity diminished, but the claimants attributed that reduction to the injunctions and produced evidence of continuing protest campaigns. No defendant appeared at the final hearing.

The court had to determine whether summary judgment should be entered, whether a quasi-final injunction should be granted against named and unknown defendants, and its appropriate terms and duration.

1. Application granted. The claimants proved on the balance of probabilities a high and imminent risk that the remaining named defendants or persons unknown would commit the pleaded trespass and nuisance. The earlier dangerous incursions and obstructions, continuing public threats and deterrent effect of the interim orders established that unlawful activity would probably resume without an injunction.

2. The absence of defendants did not relieve the court of scrutiny. The application was treated as effectively without notice. The court considered defences which persons unknown could reasonably have advanced and found no realistic prospect of a successful defence. Summary judgment therefore satisfied CPR Part 24.

3. A final anticipatory injunction does not require proof that a defendant has already committed the threatened tort. It requires a sufficiently real and imminent threat. A final order against persons unknown is an exceptional, quasi-final remedy resembling a temporary rule applicable to future citizens. It therefore requires compelling justification and rigorous substantive and procedural safeguards.

4. Those safeguards were satisfied. The claim identified recognised causes of action; disclosure was full and frank; damages were inadequate; and the prohibited conduct matched the pleaded torts. The defendants were defined by conduct connected with the relevant protests. The order used clear language, precise site plans and limited geographical boundaries. Alternative service had been authorised and effected. Affected persons retained generous rights to seek variation or discharge.

5. Articles 10 and 11 of the European Convention on Human Rights did not provide a realistic defence to trespass, criminal damage or private nuisance. They were relevant to obstruction on public highways, but the restrictions were prescribed by law and pursued legitimate aims. Those aims included protecting property, access, life and safety, emergency services and fuel supplies. The order struck a fair balance because the conduct created grave risks, less restrictive measures were unavailable and lawful protest remained possible.

6. A five-year term was proportionate. The evidence showed enduring campaigns, continuing threats and no meaningful engagement. The order nevertheless required annual review and allowed applications to vary or discharge it. The quasi-final injunction was granted.

• High Court: On 26 January 2024 the court granted summary judgment and a five-year quasi-final injunction, subject to annual review.
• Earlier proceedings: From March 2022 successive High Court judges granted, continued and revised interim anticipatory injunctions, alternative-service directions and procedural orders. On 28 July 2023 Bourne J replaced the existing order with a revised interim injunction and directed service of acknowledgments, defences or undertakings.