HS2 wins route-length High Court injunction against protestors

England and Wales

On 20 September 2022, Knowles J granted an interim injunction to High Speed Two Limited (“HS2”) and the Secretary of State for Transport (“SoST”) against four categories of ‘persons unknown’ and 59 named Defendants, i.e. environmental protestors.


HS2 and the SoST (together the “Claimants”) sought an injunction (replacing previous injunctions along sections of the route) to cover the entire length of the proposed HS2 railway line, which will run for approximately 140 miles from London to the North of England via the West Midlands, to restrain unlawful protests against the project (the “HS2 Project”). The causes of action underpinning the Claimants’ application for injunctive relief were those of nuisance and trespass.

The Claimants’ Application

The Claimants argued that an anticipatory injunction was justified due to the real and imminent risk of trespass and nuisance along the whole of the HS2 route and surrounding land. At least some of the Defendants had stated a clear intention to continue to take part in protests against the HS2 Project and move across and/or take action on HS2’s land to cause maximum disruption to the planned works. Accordingly, the Claimants submitted that they were entitled to a route-wide injunction.

Further (and citing previous case law), the Claimants submitted that there was no right to protest on private land, and therefore, the rights granted by Article 10 (Freedom of Expression) and Article 11 (Freedom of Assembly and Association) of the European Convention on Human Rights (the “Convention Rights”) were not engaged in the circumstances.

The Defendants’ Challenge

The Defendants challenge included arguments that:

  • The definition of ‘Persons Unknown’ was too broad;
  • some of the land over which the Claimants sought the injunction, did not give rise to an immediate right to possession;
  • the test for a precautionary injunction had not been met; and
  • the terms of the injunction were too broad and vague.

Decision and Judgment

The Claimants successfully obtained the injunctive relief sought: This will remain in place for a year from the date of the application. The injunction does not however prohibit lawful protest activity against the HS2 Project. Knowles J stressed that his judgment would not comment on the merits of the HS2 Project itself, whilst also rejecting the Defendants’ submission that the judiciary was being ‘weaponised’ against environmental protestors.

On the causes of action (i.e. trespass and nuisance) and the reasons why an injunction was justified, Knowles J was satisfied that:

  1. The Claimants could demonstrate sufficient title over the land in question to bring an action in trespass either as freehold or leasehold owners or based on statutory rights granted;
  2. the Claimant’s evidence as to previous instances of trespass was plentiful and numerous: The evidence documented that there was repeated trespass on multiple occasions by both known (i.e. the 59 named Defendants) and ‘persons unknown’ across HS2 land;
  3. the Defendants (both known and unknown) had stated a clear intention to continue their unlawful protests against the HS2 Project. Knowles J acknowledged that there had been significant instances of violence and criminality, and on some occasions risk to the lives of activists, HS2 staff and HS2 contractors. He also accepted the Claimants’ evidence that a lot of the direct protest action was more about trying to cause as much nuisance as possible than it was about expressing the activists’ views on the HS2 Project;
  4. further, the construction of the HS2 Project was set to continue for several years to come, and therefore by reason of this (together with item (3), the risk of continued trespass and nuisance to the HS2 Project was both real and imminent; and
  5. there had been a number of instances of unlawful protest recently whereby injunctions were deemed appropriate to curtail the unlawful conduct complained of.

Further, and on the matter of the Convention Rights, Knowles J acknowledged that these were clearly important to consider in the circumstances:

  • He reviewed the factors that are relevant to interference with protestors’ rights under Articles 10 and 11;
  • highlighted, amongst other things, that many of the HS2 protests to date have not been peaceful; and
  • noted that the Convention Rights under Articles 10 and 11 do not confer a right of protest on private land (as established in previous case law), and ‘much of what the Claimants seeks the injunction to restrain relates to activity on private land’.

It was for this reason that the injunction (when weighed with the other factors as set out above) was deemed appropriate, and Knowles J rejected the Defendants’ contention that any such order would interfere unlawfully with the protestors’ Convention Rights (albeit Knowles J did accept that some protests may spill onto the public highway and that these protests would engage the Convention Rights granted by Articles 10 and 11).

In addition, the injunction in this case was made against both persons unknown and named individuals: It was recognised that it would not be effective to include only named defendants because the activist groups involved are an ‘unknown and fluctuating body of potential defendants’.

The injunction itself prohibits the Defendants from:

  • Entering or remaining on HS2 land; and/or
  • obstructing or otherwise interfering with the free movement of vehicles, equipment or persons accessing or egressing the HS2 land; and/ or
  • interfering with any fence or gate on or at the perimeter of the HS2 land (albeit Knowles J set out a non-exhaustive list of what the prohibited acts of obstruction and interference would include).

Finally, and citing a previous injunction against protestor activity in relation to a road development (see National Highways Limited v Persons Unknown and others [2022] EWHC 1105 (QB)), Knowles J noted that the present case similarly warranted an extensive order in terms of its geographical reach: there was plain evidence of the Defendants’ intention to continue unlawful protest activity and cause disruption without limit (i.e. along the entire length of the HS2 Project).

CMS Comment

This judgment adds to the mounting number of cases (in this year alone) where injunctive relief has been sought by Claimants (often private companies) as a means of redress against unlawful protestor activity. This latest decision provides further (and helpful) guidance on the factors which the Commercial Court will consider when dealing with unlawful protestor activity, against both named individuals and ‘persons unknown’ defendants.

What is particularly notable about this injunction is the vast geographical scope covered: In the circumstances, it was the real and imminent risk of continued unlawful protestor activity which, as a result of the large and fluctuating group of Defendants could occur anywhere along the entire HS2 Project, that justified the grant of an anticipatory injunction to protect the entire proposed route.

This judgment highlights that the Commercial Court is willing to grant such wide injunctions where there is evidence to demonstrate that such protection is strictly necessary.

The judgment can be read in full here.

Co-authored by Frankie McPeanne, Trainee Solicitor at CMS