The recent decision of Mr Justice Knowles granted a final injunction until the end of the year, in line with completion of construction of the project, and gives useful guidance for anyone considering similar action.
The matter started in August 2022 with Esso seeking an interim injunction to restrain unlawful protest interfering with the construction of its Southampton to London pipeline pursuant to a development consent order (“DCO”). The pipeline runs for over 100km across southern England and the works are designated as a Nationally Significant Infrastructure Project. There had been a number of activities undertaken and damage caused to the project in protest at the perceived environmental impact.
An interim injunction restraining certain activities was granted in August and was re-considered following a further hearing which ordered the continuation of the interim injunction pending trial. This judgment is the outcome of that trial.
Tort of conspiracy to injure
As a result of the extent and nature of the project the claim was based on tort of conspiracy to injure by unlawful means - the unlawful means being actual or threatened private nuisances and trespasses to goods and land. It was held to be clear on the evidence that the protest activity was aimed at harming or disrupting Esso’s business, including completion of the project.
There was a useful discussion as to whether a claimant in these circumstances needs to be able to establish that a claim based on this tort is one the claimant itself can bring i.e. that it will directly suffer harm or whether it can rely on the rights of and damage to others (i.e., third parties, such as contractors, who own goods that have been or may be damaged by protestors).
The Court found that the claimant did have to establish some loss on its own part, but could also rely on loss to third parties. Any claimant would have to show the link between that third party loss and the intention to harm the claimant’s business. In this instance that was established on the evidence and as a result of the unlawful activity.
Human Rights Act
The Court was clear that where, as in this case, there are public and private rights/land careful consideration needs to be given to the precise terms of the order and the specific activities to be restricted to prevent interference with rights of the general public or any activity, including protest activity, that wouldn’t otherwise be unlawful.
There is no freedom of forum to protest so the balance the Court has to consider in relation to the Human Rights Act (“HRA”) differs between private and public land. The assessment as to the proportionality of granting the restriction of those rights will also change. In either case the terms of the order must not “destroy the essence” of the HRA rights but rather seek to ensure that any interference with the HRA rights should only be what is necessary to prevent the real or threatened harm to the claimant.
The nationally significant importance of the pipeline project certainly assisted in balancing those contrasting positions, not just from the perspective that the Government had concluded it was in the general interest of the public and the country, but also as a result of the associated health and safety concerns resulting from the potentially unlawful protest activity being restrained.
In this case the Court was content that real care had been taken in framing the order sought to preserve the right to lawful protest and no less restrictive alternative means was available to protect the rights of the Claimant.
Any application for an injunction, whether interim or final, will need to be carefully considered and accurately drafted to ensure a balance between protection of private rights and the freedom of expression and right to protest. Good evidence of a continued threat and a carefully framed order that gives clear geographical and temporal limits will assist. The potentially greater importance of what is being protected, such as nationally significant infrastructure (see our Experteaser on the new criminal sanctions which might also be of relevance), and the likely harm caused by the unlawful protest activity that is sought to be restrained, in terms of health and safety of the general public and protestors, may assist in tipping that balance in favour of the grant of an injunction.