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16 January 2019

Q&A: What can I do about unwanted guests?

Question

We are helping a client with the redevelopment of a site as a supermarket. Groups of unidentified people described as “anti-capitalist protesters” have sought to obstruct the development. Despite the security measures in place, protesters have been entering the site with placards and disrupting work, with others congregating on the pavement outside. A number have also targeted the client’s sub-contractors – interfering with their vehicles, following their staff home and putting the client at risk of them withdrawing their services. The protesters are adamant that they have a fundamental right to protest. Can our client stop this?

Answer

Yes. Your client can certainly obtain court orders to prevent incursions on site. It may also be possible to restrain the interference with its sub-contractors, even without those contractors having to pursue proceedings themselves.

Explanation

Four particular issues need to be considered:

1. What type of legal remedy is appropriate?

Since the protesters have not taken over possession of the site, your client will not be seeking a possession order. Instead they will want an injunction to personally target the protesters and prohibit certain types of behaviour. Breach of such an order would, in principle, be punishable by imprisonment for contempt of court.

2. What is the significance of the protesters’ own rights?

The protesters have rights of freedom of expression and peaceful assembly under articles 10 and 11 of the European Convention on Human Rights (ECHR). Those will not disappear on Brexit as the ECHR forms part of an entirely different legal system. However, they will not trump the rights of a private landowner to stop a trespass: the protesters can plainly exercise their rights without being on site (Ineos Upstream Ltd v Persons unknown [2017] EWHC 2945 (Ch) and Sun Street Properties Ltd v Persons unknown [2011] EWHC 3432 (Ch)). Protest outside the site without breach of any law will obviously not be prohibited.

Bringing human rights into play will, however, require the court to apply a stricter test when considering any interim injunction, according to Ineos and Cuadrilla Bowland Ltd v Persons unknown (unreported, 11 July 2018). The court will ask whether the client is more than 50% likely to succeed at trial, rather than looking for a “serious issue to be tried”.

3. Can the client take action to protect its sub-contractors without them suing?

Targeting the landowner’s supply chain is an established direct-action technique, as illustrated in Ineos and Cuadrilla. In practice, if sub-contractors experience disruptive action, they may simply cease trading with the landowner rather than embark on costly proceedings. However, the court can make “supply chain orders” at the request of the landowner. This works if the protesters have conspired or combined together to impact a third-party supplier by unlawful behaviour in order to harm the landowner.

4. Is it a problem that protesters’ identities are not known?

No: cases over the last 15 years have clearly established that it is permissible to claim injunctions against “persons unknown”. The court will carefully scrutinise the description used, eg “persons unknown entering X land” to ensure it is sufficiently clear.

Question

My client recently acquired a former industrial estate. The estate backs onto railway land and includes a derelict warehouse of questionable structural integrity. My client is concerned about the risk of trespass after learning that several illegal raves have been held in disused sites nearby. Is there a legal route to prevent raves happening on this site?

Answer

In principle: yes. Your client can apply to court for an injunction on a quia timet (“because he fears”) basis in anticipation of such illegal activity.

Explanation

In Vastint Leeds BV v Persons unknown [2018] EWHC 2456 (Ch) the High Court summarised the principles applying to the grant of anticipatory quia timet injunctions.

When deciding whether to grant such an injunction, the court will apply a two-stage test considering:

(1) whether there is a “strong probability” of a breach of your rights, in the absence of such an order; and

(2) if your rights were breached and the court granted an injunction only at that stage, whether the resulting harm would be “grave and irreparable” so that an award of damages would be inadequate to compensate you.

In each case, the enquiry will be fact-specific, with the outcome depending on detailed evidence.

As to (1), your client could rely on: (i) the proximity of the other rave sites; (ii) the frequency of those events, showing a risk of imminent breach of your client’s rights; (iii) the attitude of the organisers in ignoring the rights of landowners and moving between venues; (iv) the similarities between the sites and the attractiveness of your client’s site; and (v) its vulnerability to trespass. On the last point, it would be relevant if your client had taken substantial steps to secure its site, but with evidence that the site was nevertheless still vulnerable to breach.

Turning to (2), the court should acknowledge that there may be risks to life and limb if your client’s warehouse were used for raves. Those are obviously matters which go beyond mere monetary compensation. Also, if your client suffered financial loss in having to recover, clean up and re-secure its site, in reality it would be very unlikely to recover those costs from either the rave organisers or attendees. Finally, it should be noted that injunctions prohibiting conduct should be granted with greater ease than injunctions mandating positive action.


This article was written by Rachel Morrish and Kavan Gunaratna (Barrister at Enterprise Chambers). For more information please contact Rachel on rachel.morrish@crsblaw.com or +44 (0)20 7427 6644.

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