Oxfordshire County Council v Ben Cullen & Ors

A highway authority may obtain a final injunction against named defendants or persons unknown where there is compelling evidence of repeated and imminent unlawful interference with the highway, real harm, and no adequate alternative remedy. The equitable jurisdiction is flexible, but an order against persons unknown requires careful definition of the prohibited conduct, geographical limits, service arrangements, review rights and duration.

Unauthorised attachment of flags or marking of the highway may constitute an offence and trespass. Any interference with Articles 10 and 11 rights must be prescribed by law, pursue a legitimate aim and satisfy proportionality. Lawful alternative forms of expression are relevant to the fair balance.

Oxfordshire County Council, as highway authority, sought final injunctions restraining named defendants and persons unknown from attaching flags to highway structures, marking flags on highways, obstructing removal work, or harassing council employees and contractors.

The claim arose from persistent flag-related activity across Oxfordshire. Three named defendants gave undertakings. Kevin Good did not sign an undertaking or attend the hearings. The central issues were whether an injunction should be granted against persons unknown and whether a final injunction should be granted against Kevin Good, having regard to the Council’s statutory and proprietary rights and any Articles 10 and 11 rights engaged by the conduct.

1. Disposition. Final injunctions were granted against persons unknown and against Kevin Good. Each order was limited to 12 months, with liberty to apply. The order against persons unknown was confined to clearly defined conduct in Oxfordshire highways for which the Council was highway authority, and alternative service arrangements were provided.
2. The Council was the highway authority for most relevant highways. Under the Highways Act 1980, highways maintainable at public expense vested in the highway authority, which had duties to maintain the highway and protect public access. The Council could remove unauthorised markings. Affixing flags or marking the highway without consent, authorisation or reasonable excuse was prima facie an offence. A mistake of law did not amount to reasonable excuse.
3. The court applied the principles in Abbasi v Newcastle Upon Tyne NHS Trust [2025] UKSC 15 and the Broadmoor jurisdiction. A public authority could seek an injunction to prevent interference with statutory functions where it was just and convenient and compatible with Convention rights. The equitable jurisdiction was flexible and was not confined by previously recognised categories.
4. For persons unknown, the court applied the compelling-need requirements identified in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47. The evidence established a strong probability of continuing unlawful conduct, real and imminent harm, and an inadequate deterrent in the available fines. The Council’s proprietary rights, statutory duties and responsibility for highway safety supplied a compelling justification.
5. The court proceeded on the basis that Articles 10 and 11 were engaged. Applying DPP v Ziegler [2021] UKSC 23 and the proportionality analysis in Bank Mellat v Her Majesty’s Treasury No. 2 [2013] UKSC 39, the injunctions pursued legitimate aims, were prescribed by law and rationally connected to those aims. Prosecution and modest fines were less effective prospective measures. The orders did not destroy the essence of expression or peaceful assembly because patriotism and protest could be expressed by other lawful means.
6. As to Kevin Good, the requirements of CPR 24.3 were met. He had no real prospect of successfully defending the claim and there was no compelling reason for a trial. His conduct and public statements established an appreciable risk of recurrence, and damages were inadequate to prevent future breaches.