Landowners’ powers against protesters: a balancing exercise
Cases involving protesters and private property rights have become a hot topic in the Courts over recent years. The Courts have had to weigh up complicated competing rights: the right of protesters to freedom of assembly and expression, as against a landowner, and prospective Claimant's private property rights.
In the last 12 months alone, there has been a series of cases dealt with by the higher Courts. Tying these cases together is the thread of injunctive relief where the Defendants to such proceedings are unknown - i.e. "persons unknown”.
A brief summary of the decisions
On 3 April 2019, the Court of Appeal handed down its judgment in Boyd & Anor v Ineos Upstream Ltd & Ors  EWCA Civ 515 (“Ineos”), where the Court unanimously reached a decision to partially allow the appeal made by the protesters against fracking companies (by discharging injunctions against two of the protesters).
This was followed by another 'fracking' case: Cuadrilla Bowland Ltd and others v Persons Unknown and others  EWCA Civ 9 (“Cuadrilla”), where the Court of Appeal handed down judgment on 23 January 2020. This appeal by protesters differed slightly from Ineos in that the protesters argued primarily that the injunction was insufficiently clear to be capable of enforcement by a committal order. The Court disagreed that the injunction was insufficiently clear but did vary the committal order.
Most recently, on 5 March 2020, the Court of Appeal gave its judgment in the case of Canada Goose UK Retail Ltd & Anor v Unknown Persons  EWCA Civ 303 (“Canada Goose”) and dismissed Canada Goose's appeal after its application for summary judgment for a final order was rejected on the basis of defective service and an unacceptably wide and far-reaching injunction.
The key principles arising
Ineos is a multinational chemicals company which held leases of various sites around the UK for the purposes of fracking and gas exploration. The Claimants were four Ineos companies and the landowner’s of several of the UK sites who commenced proceedings for injunctions against 5 “persons unknown”, and two named individuals: Mr Boyd and Mr Corre’ to restrain the protesters from committing various acts across the sites.
The categories of "persons unknown" were described as follows:
- First Defendant: Persons unknown entering or remaining without the consent of the Claimant(s) on Claimant-owned land;
- Second Defendant: Persons unknown interfering with Ineos' right to pass and repass with or without vehicles, materials and equipment over private access roads;
- Third Defendant: Persons unknown interfering with the right of way enjoyed by the Claimant(s) each of its and their agents, servants, contractors, sub-contractors, group companies, licensees, employees, partners, consultants, family members and friends over public rights of way (including by blocking the highway, slow walking, climbing onto vehicles, unreasonably preventing access to or egress from the sites, and unreasonably obstructing the highway);
- Fourth Defendant: Persons unknown pursuing conduct amounting to harassment; and
- Fifth Defendant: Persons unknown combining together to commit unlawful acts (which included but were not limited to committing an offence of criminal damage or theft, obstructing free passage along a public highway, slow walking, blocking the highway, climbing onto vehicles and otherwise obstructing the highway with the intention of causing inconvenience and delay).
In October 2017, Morgan J awarded interim injunctions in favour of the Claimants on the basis that there was a real and imminent threat of unlawful activity against all of the categories of "persons unknown", with the exception of the fourth category.
Mr Boyd and Mr Corre appealed and permission to appeal was granted on three grounds including whether the Judge was correct to grant injunctions against "persons unknown".
In his Judgment, Longmore LJ, in applying various earlier authorities "tentatively framed" the requirements necessary for the grant of the injunction against unknown persons (at paragraph 34 of his Judgment):
“1) there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
2) It is impossible to name the persons who are likely to commit the tort unless restrained;
3) It is possible to give effective notice of the injunction and for the method of such notice to be set out in the order;
4) The terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;
5) The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do; and
6) The injunction should have clear geographical and temporal limits."
The Judge found that the first three requirements were met but had difficulty with the latter three. He concluded that the injunctions against the third and fifth category of "persons unknown" should not have been granted on the basis that the injunction was too wide and uncertain.
The tort of conspiracy to cause damage requires reference to a Defendant's subjective intention which is not necessarily known to the outside world and should therefore not be included. The concept of 'slow walking' (a popular form of protest) in front of vehicles or obstructing the highway may not result in any damage and was considered too wide. Further, the concept of "unreasonably" obstructing the highway was not capable of being assessed without reference to an actual factual event. Finally, the Judge was troubled by the concept of "without unlawful authority or excuse" being built into an injunction order because it was not likely to be understood sufficiently by the ordinary person.
In respect of the injunctions against the first and third category of persons unknown, the Judge concluded that although there were acceptable geographical limits, there was no temporal limit which rendered it unsatisfactory.
Accordingly, the Court of Appeal discharged the injunctions made against the third and fifth Defendants and remitted the injunctions against the first and second Defendants back to the Judge to consider what time limit was appropriate.
Like Ineos, Cuadrilla is another company engaged in fracking activity. Cuadrilla (and the other Claimants) owned land off Preston New Road in Lancashire and protests started in 2014 long before any work had commenced, with protesters occupying the land. Cuadrilla sought a possession order and an injunction which was granted until 6 October 2016.
Work at the site began in January 2017 and the protests intensified. Over a 15 month period, 350 arrests were made including 160 for obstructing the highway. On 1 June 2018, an interim injunction was granted until 11 July 2018, whereupon the injunction was replaced with a further injunction on similar terms for a period of two years unless otherwise varied or discharged. This injunction of 11 July 2018 sought to prevent trespass onto the Claimants' land and unlawful interference with the Claimants' rights and supply chains.
On 3 September 2019, the High Court made an order committing three people to prison for contempt of Court, having breached the terms of the July 2018 injunction - namely 'locking on' at the entrance to the site and one standing in the path of a lorry. At the same time, the protesters sought to vary the July 2018 injunction on the basis that some of the terms were wide or too uncertain (relying on the decision in Ineos). However, their application failed and they sought to appeal that decision, maintaining that some of the terms of the injunction were insufficiently clear and certain because the prohibited conduct was made by reference to an intention to breach the terms of the injunction, and they claimed they were unaware of the injunction.
In considering the Ineos case, the Leggatt LJ (who also presided over the Ineos case in the Court of Appeal) agreed with the general principle that an interim injunction could be granted against newcomers (i.e. persons not yet known to the Claimant who breach the terms of the injunction). However, the Court of Appeal in Cuadrilla added some qualification to the fourth and fifth requirements of Longmore LJ's framework in Ineos.
In respect of the fourth requirement, Leggatt LJ was of the view that although it was desirable that the terms of the injunction correspond to the threatened tort and were not so wide that they prohibited lawful conduct, this should not be an "absolute rule". He considered that the Court should be careful to ensure that an injunction is not put in place which is wider than is necessary to do justice. However, a Court can award an injunction - even if the conduct is not in itself tortious or otherwise unlawful - if it is satisfied that such a restriction is necessary to afford effective protection of a landowner’s rights.
Leggatt LJ also considered the requirement for a subjective intention on the part of the Defendant in respect of the fifth requirement and concluded that the concern expressed by reference to the Defendants’ intention in the Ineos decision was misplaced in saying that subjective intention should not be included. He said that a prohibition could be framed to apply only to future conduct that actually causes damage. However, in order to make the terms of the injunction correspond to the tort and avoid prohibiting conduct that is lawful, it is necessary to include a requirement that the Defendant’s conduct was intended to cause damage to the Claimant. But, he added that subjective intention added a layer of evidential burden for Claimants to prove that there was such intention on the part of the Defendant(s) and that it would avoid restraining conduct that was lawful.
Canada Goose Retail Limited UK is the UK trading arm of an international retail clothing company selling mostly coats which contain animal fur and down. A week before Canada Goose’s flagship store opened its doors on Regent Street on 9 November 2017, animal rights protest groups had gathered outside protesting against Canada Goose's production methods (in particular, the procurement of coyote fur). Such protests were on a relatively small scale involving up to around 20 protesters at any time and were generally peaceful.
However, in its original application for an injunction, Canada Goose provided evidence that some protesters had engaged in more forceful methods - including confronting members of the public or Canada Goose employees.
At its very peak, protesters ran into the hundreds with isolated incidences of vandalism and customers being confronted. Some activities did venture into criminality and five arrests were made on one occasion. Following Canada Goose's application, an interim injunction was granted on 29 November 2017. Nearly two months later, Canada Goose sought summary judgment for a final order in respect of the interim injunction and this was refused. The interim injunction was lifted. Canada Goose appealed that decision on four grounds:
Ground 1: Service
The Judge at the first hearing allowed the interim injunction order to be served by an alternative method of service - namely by email. No such provision was made for the Claim Form and Particulars of Claim to be served by an alternative method of service. Canada Goose sought to argue that the Court had erred in not exercising its discretion to amend the original Order or to accept the application to dispense with service. The Court of Appeal held that the mistake was of Canada Goose's own making because Canada Goose could have made an application for an order for alternative service at any time and that the Judge had not reached the wrong decision. An application for permission to serve by alternative methods of service would have allowed for the proceedings to have reached a wider audience of potential protesters. Referencing Lord Sumption in Cameron v. Liverpool Insurance Co Ltd  UKSC 6, the Court maintained that it is "a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the Court without having such notice of the proceedings as will enable him to be heard". This appeal ground was accordingly dismissed.
Grounds 2 and 3: Description of First Respondents as “persons unknown” and approach to summary judgment
The Court dealt with these two grounds together. Canada Goose appealed on the basis that the Judge had erred in not permitting an attempted reformulation of the description of the First Respondents. Further, it claimed that the Judge incorrectly concluded that the proper approach was to focus on the "individual evidence of wrongdoing in relation to each identified individual protester", that Canada Goose should have differentiated between those individuals, and that the evidence of wrongdoing of some individuals within a potential class could not form the basis of injunctive relief against the class as a whole.
The Court disagreed and applied the principles in Ineos. The Court of Appel identified two categories of cases. Category 1 comprises anonymous Defendants who can be identified but whose names are unknown, for example squatters occupying a property. Category 2 comprises Defendants such as a “hit and run” driver who are anonymous and cannot be identified. Category 1 Defendants can be served with the Claim Form, if necessary by alternative service but for Category 2 Defendants, service is impossible.
The Court of Appeal concluded that Canada Goose’s Claim Form was defective on the basis that the description of "persons unknown" was "impermissibly wide". In the Claim Form, the description was as follows:
"Persons unknown who are protesters against the manufacture and sale of clothing made of or containing animal products and against the sale of such clothing at Canada Goose, 244 Regent Street, London W1B 3BR"
In citing an extreme example of the scope of this description, Nickin J observed that the scope of any injunction could apply to "a peaceful protester in Penzance". The Court also found that the specified prohibited acts were not confined to unlawful acts, that the injunction failed to provide a method of alternative service that was likely to bring the order to the attention of the "persons unknown", and that the original Order was defective as it was not time limited.
There was a further ground of appeal but that was not pursued.
Guidelines for interim injunctions against “persons unknown”
Summarising the earlier judgments of Ineos and Cuadrilla, the Court of Appeal in Canada Goose provided helpful clarity as to the requirements for Claimants seeking interim relief against "persons unknown" which can be summarised as follows:
- If "persons unknown" are known to the Claimant and can be identified, they must be joined as individual Defendants to the proceedings.
- The "persons unknown" must be defined by reference to their conduct which is alleged to be unlawful.
- There must be a "sufficiently real and imminent risk of a tort being committed" to justify quia timet ('because they fear') relief.
- The Defendants must be capable of being identified and served with any order (and if necessary, by alternative methods of service).
- The prohibited acts must correspond to the threatened tort (which may include lawful acts if there is "no other proportionate means of protecting the Claimant's rights").
- The terms of the injunction must be "sufficiently clear and precise" and be worded in ordinary language which is clear for any Defendant to understand.
- The interim injunction must have clear geographical and temporal limits.
Guidelines for a final injunction order against “persons unknown”
Following Canada Goose, the position appears to be that "persons unknown" can only be made subject to a final injunction order if its provisions are confined to Defendants who are identifiable (from CCTV or body cameras or otherwise) as having committed wrongful acts prior to the order being made but whose names are unknown and provided that they have been served with the proceedings.
The practical effect of these guidelines is likely to apply more onerous requirements on Claimants seeking interim relief against protesters. Contrary to the approach taken by Canada Goose and many Claimants before it, it is not enough for Claimants to use the "persons unknown" tag without adding detailed qualification and limitations to its scope. Further, Claimants would now appear to be required to name identifiable protesters - whether by name or by description - which is likely to require considerable intelligence gathering and investigations. In addition, once a Claimant is able to identify a Defendant, it will need to serve the proceedings on them.
With regard to service, Claimants will need to consider, at an early stage, whether alternative methods of service are required and seek appropriate permission from the Court such as service via email or social media platforms.
The need to identify Defendants in some way may result in Claimants being dissuaded from seeking a final injunction particularly when it would only be effective as against those known or Defendants identified at the date of the final order (who had previously been served with the proceedings).
Whilst the recent cases have provided greater clarity and detail as to the requirements that should be met before the Court will order interim and final injunctive relief, such requirements are undoubtedly to be more onerous and costly for future Claimants, who will have to be specific both as to the terms of the order sought as well as to attempt to identify the Defendant protesters and serve them with the proceedings.
This article was written by Samuel Lear at Charles Russell Speechlys and was first published in the April 2020 issue of Property Law Journal. For more information, please contact Sam on +44 (0)1242 246374 or at firstname.lastname@example.org.