Harry Potter, Fracking, eco-warriors and ‘mob rule’ or freedom of expression – the Court of Appeal decides in the Ineos injunction case

We all have the right of assembly and to hold our own opinions and express them freely. But the right to protest, is qualified and subject to restriction. The task for the courts has been to determine the extent of such restrictions and how to impose them in cases where the names and addresses of individuals are not known, or are withheld, or false details are provided or pseudonyms are used.

The courts have been grappling with these issues for some time, but what has all this got to do with a property lawyer? Well, generally speaking when people come together to express their views, on which they feel strongly, they tend to do so on land or property and the owner of that land may seek relief from the court. We’ve been dealing with these issues for some time and this is what the Ineos injunction case is all about.

In 2017, the High Court granted, following a three day hearing, interim injunctions against several defendants who were likely to become protestors at sites selected by Ineos for the purpose of “fracking”.

Five of the defendants were described as groups of ‘Persons Unknown’ with further wording to provide a definition of the persons falling into the group.

On appeal the following issues were raised:

1. Whether the judge was correct to grant injunctions against 'Persons Unknown';
2. Whether the judge failed to have proper regard to Article 10 of the European Convention of Human Rights (“ECHR”) (Freedom of Expression) and whether the claimants would be likely to obtain the relief sought at trial; and
3. Whether the judge was right to grant an injunction restraining conspiracy to harm the claimants by the commission of unlawful acts against contractors engaged by the claimants.

The Court of Appeal considered the history of claims against ‘Persons Unknown’ and provided guidance on how claims for injunctions against ‘Persons Unknown’ should be treated in future.

The Court of Appeal said that it was too absolutist to say that a claimant can never sue ‘Persons Unknown’ unless they were identifiable when the claim form is issued. Suing ‘Persons Unknown’ had previously been permitted in a number of cases including:

• Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch). In which unknown persons had obtained copies of the yet to be published “Harry Potter and the Order of the Phoenix” and were trying to sell them (or parts of them) to various newspapers. The Vice Chancellor was clear that a claim could be issued against described 'Persons Unknown' and said “it does not seem to me to matter that the description may apply to no one or to more than one person nor that there is no further element of subsequent identification whether by service or otherwise”.

• Hampshire Waste Services Ltd v Intended Trespassers Upon Chineham Incinerator Site [2003] EWHC 1738 (Ch). In this case the claimants owned and operated a number of incinerator sites and they sought injunctions to prohibit persons from entering or remaining on on any named incinerator site in connection with the "Global Day of Action Against Incinerators". The Vice Chancellor amended the description from 'Persons Unknown' to “Persons entering or remaining without the consent of the claimants in connection with the Global Day of Action” against incinerators.

The appellants relied on the recent case of Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, in which the Supreme Court held that Ms Cameron could not sue an unknown driver of a Nissan Micra that had collided with her car, as the driver was not just anonymous but could not be identified at all and could not be sued under a pseudonym or description.

The Court of Appeal decided that:

• There was no conceptual or legal prohibition on suing ‘Persons Unknown’ who are not currently in existence but who will come into existence when they commit the prohibited tort;
• Courts should be cautious about granting injunctions against ‘Persons Unknown’ since the reach of such an injunction is difficult to assess in advance;
• It was not easy to formulate broad principles on which an interim injunction could properly be granted, but they could tentatively be as follows:
  
  
  • There must be a sufficiently real and imminent risk of a tort being committed unless restrained;
  • It is impossible to name the persons who are likely to commit the tort;
  • It is possible to give effective notice of the injunction and for the method of such notice to be specified in the order.
  • The terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct.
  • The terms of the injunction must be sufficiently clear and precise to enable persons potentially affected to know what they must not do.
  • The injunction should have clear geographical and temporal limits.

Applying these requirements to this case, the Court of Appeal maintained some of the injunctions granted by the court in 2017, discharged others as too wide and uncertain and remitted certain issues back to the trial judge.

The decision of the Court of Appeal does not come as much of a surprise. It must be right, that in order to seek injunctions against ‘Persons Unknown’ that they are in fact unknown.

In the numerous claims of this nature that we have been involved with over the years we have always sought to give some form of notice whether that is to a linked group or via social media. We have tried (often with difficulty!) to seek clear and precise terms that correspond with the wrong complained of and are not so wide to prohibit lawful conduct.

Our advice to clients in these matters is that there is a balancing exercise to be carried out. The protestors must be allowed to carry out an effective protest but that must be balanced with the client’s right to carry on their lawful business without undue interference.

Ineos said following the hearing that: “We respect peaceful protest, but we must stand up to the militants who game the legal system with intimidation and mob rule”. We wait to see therefore what Ineos will do next.