Court scales back HS2 protest injunction as project partially abandoned

England and Wales

The High Court has recently extended, in time if not geographical spread, an injunction order to protect the HS2 project from unlawful interference by anti-HS2 activists and other trespassers.  The decision is significant in two respects: (i) it addresses the question of how claims of this type ought to address changing circumstances; and (ii) it considers the question of whether these kinds of proceedings ought to continue on an ‘interim’ basis, or ought to be brought to a final determination.

The order, which covers all HS2 land for phase 1 of the project, was first granted in 2018 and has been renewed several times since then.  The claimants, HS2 Ltd and the Secretary of State for Transport, argued that the order should renewed again on the same interim basis as before, claiming it was necessary and effective in reducing the costs and delays caused by the defendants' actions.

The defendants included any persons unknown who entered or remained on HS2 land without consent, obstructed access to HS2 land, or damaged HS2 land perimeter security, as well as 61 named individuals who were involved in anti-HS2 campaigns.  Only one of the named defendants opposed the claimants' application for an extension of the order.  He contended that the claimants should proceed to a final hearing, that the claimants had failed to make the Court aware (as they were obliged to) of the change in circumstances caused by the Government cancelling phase 2 of the project, and that he wished to be released from the claim.

In light of the arguments made by the named defendant and having reviewed the guidance set down by the Supreme Court in Wolverhampton City Council v London Gypsies and Travellers, (which clarified the law on injunctions against newcomer travellers), the High Court significantly reduced the geographical scope of the injunction to reflect the revised (reduced) scope of the project. The Court was of the view that the government announcement that phase 2 section would not be built removed protesters' incentive to target it. New criminal offences also existed to deter disruption by protest of any nature in relation to nationally significant infrastructure such as this.

However, the injunction was renewed for a further year for the London-Birmingham route, where construction continues. The court found that a real continued risk of protest activity, and evidence to support the belief that the injunction and associated criminal sanctions presented a significant deterrent, justified continuation of the precautionary relief there.

The ruling highlights how changed circumstances can lead courts to reassess the justification for injunctions against "persons unknown" in these instances and again reiterated the importance of taking steps, in a timely manner, to comply with the duty of full and frank disclosure by updating the Court where such changes occur.

The judgment provides useful guidance on adapting "persons unknown" orders to project changes. The claimants' four-month delay in notifying the court of the Phase 2a cancellation was criticised, although not enough to discharge the entire injunction which was otherwise working as intended.

The ruling also resists calls to force claimants to pursue a final order imminently, noting protest injunctions operate differently than typical interim relief "holding the ring" pending trial. Most activists did not actively defend and the real mischief was the ongoing need to guard against "persons unknown", not resolve disputes with a handful of named defendants where the proceedings are in fact “more a form of enforcement of undisputed rights than a form of dispute resolution”.

The decision shows courts' pragmatism in balancing these two opposing rights (the right to protest and the right to carry out a lawful development) by carefully crafting injunctions sufficiently flexibly to protect active infrastructure works from disruption, while keeping orders under regular review.

You can read the judgment here: High Speed Two (HS2) Ltd & The Secretary of State for Transport v Persons Unknown