London City Airport Ltd & Anor v Persons Unknown

A precautionary newcomer injunction may be granted where there is an imminent and real risk of harm from threatened trespass or nuisance. In this context, imminence means that the application is not premature. The court must identify a civil cause of action, have sufficient evidence to establish the claim, consider any realistic defence, assess the balance of convenience and compelling justification, and ensure that the persons unknown, prohibited conduct, geographical boundaries and duration are clearly defined. On private land, Convention rights of protesters are not engaged merely because the intended conduct is expressive. The existence of criminal byelaws does not necessarily provide a sufficient alternative means of control.

The claimants, operators and owners of London City Airport, sought without-notice precautionary injunctive relief against persons unknown said to be connected with a planned environmental campaign targeting airports. The threatened conduct included entry onto airport land, occupation, disruption and interference with airport operations. The land covered by the proposed order was private land.

The court considered whether the application was sufficiently imminent, whether the torts of trespass and private nuisance were established, whether the order could properly be made against newcomers, the relevance of Convention rights and airport byelaws, and whether the terms and service arrangements were adequate.

1. Disposition. The precautionary injunction was granted. The claimants established an imminent and real risk of harm. The threatened conduct would amount to trespass and private nuisance.
2. Precautionary relief. The applicable test was whether there was an imminent and real risk of harm. Imminence meant that the application was not premature. The evidence of a genuine and publicised airport campaign, together with the particular safety risks at the airport, satisfied that test: [2019] 4 WLR 100, [2017] EWHC 2945 (Ch) and [1975] Ch 43.
3. Newcomer injunction requirements. The court applied the factors identified in Valero and Multiplex. There was a civil cause of action; the claimants had the better right to possession; the evidence overwhelmingly established the claims; no realistic defence existed; damages were inadequate for the threatened non-pecuniary harm; and the injunction was clearly framed by reference to the prohibited conduct and defined land. The five-year duration, annual reviews and liberty to apply supplied appropriate safeguards.
4. Convention rights. Because the affected land was private, the defendants had no right to enter or protest there for the purposes contemplated. The position differed from restrictions on protest on public land, where Articles 10 and 11 of the Convention could be engaged.
5. Byelaws and necessity. Although byelaw 3(12) of the London City Airport Byelaws 1988 criminalised entering or remaining at the airport for protest purposes, the byelaws were not a sufficient means of control. The injunction was therefore necessary and justified in support of the criminal law.
6. Without-notice procedure. The court proceeded on the basis that good and compelling reasons were required. Those reasons existed because notification created a serious risk that the threatened action would occur before the application was heard, causing grave injury, disruption and irreparable harm.