On 3 May 2023 the High Court handed down the judgment of Mr Justice Morris in the case of Transport for London v Persons Unknown. This judgment demonstrates that injunctions of this nature, if properly formulated and supported by evidence, can be granted both on an interim and final basis and against both named and unnamed defendants subject to complying with strict requirements for alternative service.
The judgment concerned an application by Transport for London (“TfL”) for a final injunction in claims initially raised by TfL in October and November 2021 for trespass, public nuisance and private nuisance, in the face of direct protest activity by the campaign group Insulate Britain (“IB”) blocking key roads in the London area. The final injunction was sought against 129 named defendants and certain Persons Unknown, all of whom were connected with IB. TfL asked the court to make a final order preventing the defendants from blocking, for the purpose of protests, roads and surrounding areas at 34 specifically identified locations, referred to as “IB Roads”. The IB Roads are an important part of London’s traffic network and handle a significant proportion of London’s traffic, which makes them targets for protests, and interim orders against the protest activity had previously been granted.
It is important to note that at the date of the hearing the Public Order Act 2023 was not in force, therefore this judgment makes no reference to it.
The judgment considers the following issues in deciding whether to grant the final injunction: (1) Whether the Claimant’s rights would be infringed by the Defendants’ actions; (2) Whether there is a strong probability that the Defendants would immediately act to infringe the Claimants’ rights; (3) If (2) is satisfied, whether the ensuing harm would be so grave and irreparable that damages would be an inadequate remedy; and (4) Whether the grant of a final anticipatory prohibitory injunction would be contrary to Article 10 (Freedom of Expression) and Article 11 (Freedom of Assembly) of the European Convention on Human Rights (“ECHR”).
The court found in favour of TfL in relation to all of the above points and granted the final injunctions as requested. The detailed reasoning is explained below.
- TfL argued that its rights would be infringed as the Defendants intended to commit trespass, public nuisance and/or private nuisance. The court was satisfied that all of these torts would be committed in the protests typically staged by IB. This finding, however, does not automatically mean that the protests would be unlawful – that point must be considered by reference to Articles 10 and 11 of the ECHR.
- The court was satisfied on the evidence that there was an imminent risk of further protests. IB had repeatedly said they would continue to protest and would not be discouraged by injunctions.
- The court considered evidence of past protests in assessing the ensuing harm. It was satisfied that the deliberate blocking of roads so that vehicles of all types cannot pass would cause serious disruption to many people, risk to life and of violence, economic harm, nuisance and the diversion of public resources. It was held that damages would be an inadequate remedy because: (1) much of it would be unquantifiable; (2) TfL would not be able to recover for losses sustained by others; and (3) the Defendants would be unlikely to be able to pay such damages as might be quantifiable.
- In discussing whether the injunctions infringe rights contained in Articles 10 and 11 of the ECHR, the court gave detailed consideration to the difficult balancing exercise required. The court found that the balance fell in favour of TfL in this instance - although granting the injunction did interfere with the ECHR rights, the power contained in section 37 of the Senior Courts Act 1981 (which is the basis on which the High Court may grant an injunction where it considers it is just and convenient to do so), the case law which govern the exercise of that power and TfL’s duties as a highway and traffic authority under section 130 of the Highways Act 1980 should be exercised in order to protect the rights and freedoms of others, such as other lawful highway users.
- The court also found that in this instance the interference with the ECHR rights was ‘necessary in a democratic society’ so that a fair balance was struck taking account of the requirements of freedom of expression and freedom of assembly and that there was no less restrictive alternative available. The protestors were still able to express their views at different locations and using different means.
- With regard to Persons Unknown there was a discussion about whether an individual who was unknown and unidentified at the time a final order was granted (referred to as a “newcomer”) could be bound by the terms of a final injunction. The court found that they could by bound, where they have knowledge of the terms and where those terms are clear and precise in identifying the Persons Unknown, the prohibited activities and the geographical location to which those apply.
- TfL were required to take further steps by way of alternative service to ensure the final injunction was widely publicised, including posting on their Twitter feed, notifying the Press Association and placing a notice in the London Gazette.
- Accordingly, the court granted a final injunction for a term of five years subject to yearly reviews for supervisory purposes.
There has been some doubt whether claims of this nature should be progressed procedurally to a final hearing or are more appropriately continued on an interim basis, given issues in relation to identifying and giving defendants the right to challenge. This judgment in helpful in confirming that, in the right circumstances, the court will grant a final order to prevent significant disruptions such as traffic-blocking protests which are considered to be harmful to the public and such activities are not protected by human rights legislation. Given the annual supervisory review which the court has included in its order, in practice there may be little difference between the effect of this order and annually reviewed interim orders, which has been the approach taken in other cases.
It remains to be seen what impact the new police powers created by the Public Order Act 2023 will have and the interplay between those criminal sanctions and the use of civil rights as a deterrent to protect private and public rights.