Q&A: Taking preventive action

Laura Bushaway and Joel Semakula look at whether a landowner can obtain an injunction where persons unknown threaten to protest on their land.

Question

I am the owner of a pharmaceutical lab and grounds in south-west England. On previous occasions, protestors have gained access to the lab and grounds and attached themselves to the entrance gates and plant to prevent operations at the premises. There are social media reports that protestors are planning a large protest at the lab which may include tunnelling through the grounds to disrupt the operation of the premises within the next week. Am I likely to obtain an injunction to stop their threatened actions?

Answer

Subject to the evidence, provided you can show there is an imminent and real risk of harm and you ask the court to restrain the particular activities being threatened, you are likely to succeed in obtaining an interim injunction. However, you will need to seek legal advice on your particular circumstances, as there are a number of procedural and evidential requirements.

Explanation

As a landowner, you are entitled to obtain an interim injunction to restrain a threatened or actual trespass. The purpose of an interim injunction is to determine whether or not to make a provisional order to preserve the status quo until the strength of the claim can be fully considered at the final injunction hearing. At the interim stage, it will be necessary for you to satisfy the court that you are likely to establish the trespass and the nature of the threat at that final trial. If you have evidence that the planned protests involve the same protesters as previous instances, the threshold for obtaining the interim injunction is likely to be lower (Secretary of State for Transport and another v Persons Unknown [2019] EWHC 1437).

As you are seeking to restrain these activities before they begin, you will need to show there is an imminent and real risk of harm (Ineos Upstream v Persons Unknown [2019] EWCA Civ 515). In this case, this is likely to be easily demonstrated by the dangers posed by trespassers on the grounds of a pharmaceutical lab and the additional risks posed by tunnelling.

You will need to consider whether any of the individual protesters can be identified. Those who are known and have been identified at the time of the commencement of proceedings must be joined as individual defendants. For those who cannot be identified, it has long been established that it is possible to secure injunctions against “persons unknown”. Within the order, those persons must be defined by reference to the unlawful conduct that you seek to restrain.

The drafting of the interim injunction order must be sufficiently clear and precise so the protesters know what they must not do without the use of technical language. The prohibited acts must also correspond to the threatened wrongdoing. Even lawful conduct may be restrained where it is necessary to afford adequate protection to the rights of the landowner because there is no other proportionate way of doing so. One such example is the prohibition of naked flames in an outside area where it would lead to a greater risk of fire because of the types of chemicals stored on the site. In addition, the interim injunction order should have clear geographical and time limits. In your case, this is likely to be limited to the premises, surrounding grounds and access ways.

In Barking and Dagenham London Borough Council v Persons Unknown [2022] EWCA Civ 13; [2022] EGLR 9, the Court of Appeal confirmed the court has the power to grant final injunctions that bind newcomers to the proceedings. This clarified a misstep in the law where the judge at first instance had reached the opposite conclusion. The Court of Appeal has therefore removed a potential barrier to obtaining a final injunction to restrain actions of protesters.

Barking and Dagenham also required certain procedural protections to be incorporated into any injunction such as a mechanism for review by the court. This means an injunction order would usually include a date for one or more reviews to ensure it remained just and proportionate.

In addition, the courts have confirmed that Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights do not include any additional right to trespass on private property (Ineos).

You will also need to consider service of an interim injunction order, particularly on “persons unknown”. In Barking and Dagenham, the court held that “persons unknown” are served and made a party to the proceedings when they knowingly violate an order. It is not necessary to personally serve the order on all “persons unknown”. However, it will usually be necessary to seek an order permitting service by alternative methods, which may include advertising an injunction order on a website set up for that purpose, at the premises and on social media.

Finally, the Public Order Bill 2022 is currently making its way through parliament, which could provide an alternative means of redress in the future. The current version of the Bill creates new criminal offences to prevent protesters from attaching themselves to others, objects or buildings to cause serious disruption. However, changes can be made to the Bill as it passes through parliament, so it is not clear whether these offences will remain if the Bill becomes law.

This article was first posted by the Estate Gazette.

Laura Bushaway is a knowledge development lawyer in the real estate disputes team at Charles Russell Speechlys LLP and Joel Semakula is a barrister at Landmark Chambers