Injunction upheld: Balancing protestor rights and public order

Introduction

In Thurrock Council and Essex County Council v Adams and Others [2024] EWHC 2750 (KB), the Court decided that an injunction to prevent protest activities carried out by environmental groups, including Just Stop Oil, was necessary and appropriate to protect the public from unlawful activities including obstruction of the highway, trespass and other public nuisances around fuel terminals. This decision focused only on the named Defendants, but a separate review hearing was heard earlier this year dealing with the unnamed Defendants (see Thurrock Council and Essex County Council v Adams and Others [2024] EWHC 2576 (KB)). Both cases follow on from a series of recent decisions regarding ‘persons unknown’ and protestor activity and are significant in many respects, but particularly because they address the delicate balance between the right to protest and the need to protect public safety and maintain economic stability. The cases provide clarity for both authorities and policymakers on how environmental activism may be handled in the future. Additionally, it appears likely that we will see a greater number of cases where the courts grant final injunctions against ‘persons unknown’ following the recent Supreme Court decision of Wolverhampton City Council & Ors v London Gypsies and Travellers & Ors [2023] UKSC 47.

Facts

Two local authorities, Thurrock Council and Essex County Council, brought a claim for injunctive relief to restrain protest activities carried out by members of environmental campaign groups, notably Just Stop Oil (“JSO”) in and around the Thurrock area between 1 and 15 April 2022. The protests involved obstructing traffic, acts of trespass including tunnelling and disruptive actions around fuel terminals, causing public nuisance and safety concerns. The protests were part of a broader campaign by JSO aimed at raising awareness of climate change issues and the need for urgent action to reduce fossil fuel consumption. 

Litigation commenced in April 2022 when the Claimants made a without notice application for an interim injunction against 222 named Defendants and 7 categories of ‘persons unknown’. The order was granted by Ritchie J, restricting acts of public nuisance including tunnelling and obstructing the highway and a power of arrest was attached to the order.  HHJ Simon continued the injunction from 27 May 2022. In January 2023, the final hearing of the claim for injunctive relief was adjourned pending the decision of the Supreme Court in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47. A summary of this case was included in our Oil & Gas Annual Review 2024 here. Following the decision of this case, a case management hearing was heard on 19 April 2024. At this hearing, Collins J gave separate directions for unnamed and named Defendants.

A review hearing was listed on 12 July 2024 regarding the continuation of the injunction against the unnamed Defendants only (i.e., ‘persons unknown’).  Julian Knowles J ordered at that hearing, that the injunction against the unnamed Defendants should continue for 5 years with annual reviews.

A final hearing dealing with the named Defendants was listed on 9 October 2024. That hearing was against the 26 named Defendants remaining who had not settled the claim. Only one of those Defendants, Mr Laurie, attempted to acknowledge service of the claim form and applied for permission to participate in the proceedings. Despite submitting the wrong form and then applying for a further extension and relief from sanction in respect of the late service of the acknowledgment of service, the Court held that, although Mr Laurie’s default was serious and the explanation for it not meritorious, it was in the interests of justice to allow his applications, and grant the relief sought, so that the Court could deal with the real issues between the Parties.

During the hearing, the Claimants argued that the injunction was justified as the Defendants had carried out protest activities which had constituted public nuisance and trespass. They argued that the injunction was necessary to prevent future disruptions and to maintain public order and safety in light of the fact that: (a) JSO had continued to announce and engage in a programme of direct protester action; (b) the remaining named Defendants were continuing to intend to commit acts of the kind complained of; and (c) in the case of Mr Laurie, that he had himself confirmed that he had been arrested and prosecuted as a result of further climate change protest activity since the initial injunction.

In response, the defence submitted that the claim against Mr Laurie must fail because his acts of protest were peaceful, targeted, did not disrupt road users except a single empty fuel tanker and all his actions were in accordance with his Quaker beliefs, namely that he is required to “take action to alert people to the dangers of climate change”. Mr Laurie argued that his actions were in line with his rights to protest under Articles 10 and 11 of the European Convention of Human Rights (“ECHR”) and argued that the injunction was disproportionate and infringed on his rights to freedom of expression and assembly. Mr Laurie objected to specific provisions of the injunction order, arguing that some of the provisions were unclear, too broad or related to legitimate forms of protest and that the power of arrest should not be attached to the order.

Decision

Following a review of the factual evidence discussed at the hearing dealing with unnamed Defendants (i.e., ‘persons unknown’), and an in-depth analysis of the case law in respect of trespass, public nuisance and the defence of lawful excuse, the Court held that the injunction against the named Defendants should continue and that it was appropriate to retain the power of arrest in order to deter future unlawful protest activities. In reaching this decision, Bourne J relied heavily on and referred to a number of paragraphs from the judgment of Julian Knowles J (which dealt with the injunction against ‘persons unknown’) and agreed with his conclusions, specifically that the protests involved unlawful activity leading to arrests and were such as to put the protesters and others at risk.

In arriving at his decision, Bourne J considered the following key concepts:

Whether the injunction against the Defendants, including Mr Laurie, was necessary and appropriate in the circumstances.

In concluding that the injunction was necessary to protect the safety of the public, the Court reiterated, that, taking into account all of the factors identified in the judgment, the injunction sought struck a fair balance “between the rights of the individual protestors and the general right and interests of the Claimants and others who are being affected by the protests, including the national economy”. Drawing on the judgment of Julian Knowles J concerning the unnamed Defendants, the Court concluded that:

• None of the named Defendants had declared an intention to refrain from future protest activity and in fact, many had expressed a desire to continue protesting unlawfully.
• All of the remaining named Defendants appeared to be associated with JSO who continue to promote and organise direct action and had not disavowed dangerous activities such as tunnelling which some of the protests have involved.
• Whilst the Court recognised that the injunction was an interference with the named Defendants’ Article 10/11 ECHR rights, it held that it was in pursuit of a legitimate aim to protect the rights of the public and the agencies who serve the public. That aim was sufficiently important to justify interference with the Defendants’ Articles 10 and 11 rights.
• The injunction would not stop the Defendants protesting at all but from protesting in very specific and unlawful ways.
• There is an economic need for fuel to continue to be delivered efficiently and safely which is vital to the economy.
• Damages would not be an effective remedy as the Defendants are unlikely to have the means to pay damages for losses caused by further years of disruption and criminal prosecutions are unlikely to act as a deterrent to future conduct.

Whether attaching a power of arrest to the injunction was justified.

In considering sections 27(2) and (3) of the Police and Justice Act 2006, which outlines the conditions under which a court can attach a power of arrest to an injunction, the Court held that the power of arrest should continue to apply to all the substantive prohibitions of the injunction because the activities which were the subject of the injunction generally carried a significant risk of harm to those they affect (and a more granular approach would make enforcement excessively complicated). Those activities included interfering with vehicles and apparatus and also interfering with the flow of traffic which all have the potential to cause harm. In respect to Mr Laurie individually, the Court accepted that whilst he did not participate in extreme activities such as tunnelling, he was part of a “team of people who “occupied” an oil tanker and therefore willingly interfered with key infrastructure”. The Court also highlighted Mr Laurie’s lack of willingness to offer undertakings not to engage in unlawful activity of the kind specified in the order, as other defendants had done. The Court held that even though Mr Laurie had not engaged in protest activity in Thurrock or Essex since 2022, he was arrested for an offence of “slow walking” elsewhere. Consequently, the Court was unable to conclude that Mr Laurie himself did not pose sufficient risk to be the subject of the continued injunction, at least for the present moment.

Whether the terms of the injunction were too broad and whether the specific provisions of the injunction were appropriate.

Mr Laurie had raised several arguments regarding the specific provisions of the injunction, noting that a number of the provisions were too broad, and the terms used (such as the words “encouraging” or “interfering”) were unclear. In concluding that the specific provisions of the injunction were appropriate in the circumstances, the Court rejected all of Mr Laurie’s arguments. In dismissing each objection, the Court emphasised an important distinction between protests where obstructing or delaying traffic is a side effect of protest activity versus protests which involve a deliberate obstruction of the highway or deliberately disrupts the public going about their lawful business. Due to the nature of the activities carried out by the Defendants, the Court determined that the provisions of the injunction were not too wide and could be easily understood.

Given the foregoing, Bourne J agreed with Julian Knowles J that continued injunctive relief was appropriate and that the test for a final precautionary injunction was satisfied. On that basis, in line with the order in respect of unnamed Defendants, Bourne J ordered that the injunction against the named Defendants, including Mr Laurie, should also be upheld for five years and would be subject (also in line with the order against unnamed Defendants) to annual reviews. Further, that the injunction would also contain a provision for any person affected to apply to vary or discharge it noting that circumstances may arise in which variation or discharge becomes appropriate (but despite the points made by Mr Laurie on this, that time had not yet come).

Comment

The precise requirements for and circumstances in which it is possible to obtain injunctions against named individuals and ‘persons unknown’ has become increasingly important in various contexts, particularly in connection with environmental and other protests. When it comes to ‘persons unknown’, these issues arise whenever there is a potential conflict between private or public rights and the future behaviour of individuals who cannot be identified in advance.

Both this decision and the decision against unnamed Defendants handed down earlier this year, demonstrate the continued willingness of the Court to grant, or in this case, continue injunctions against both named individuals and ‘persons unknown’, especially in cases involving significant public nuisance and trespass. The cases come after the recent Supreme Court decision in Wolverhampton City Council & Ors v London Gypsies and Travellers & Ors [2023] UKSC 47 which set an important precedent and clarified the landscape for seeking injunctions against ‘persons unknown’. It confirmed that courts have the power and jurisdiction to grant final injunctions against ‘persons unknown’ and provided guidelines to inform the court on whether to grant such injunctions and their scope.

Furthermore, the decision serves as a useful reminder of the delicate balance that must be struck between protecting public order and safety and upholding the fundamental right to protest. It highlights that courts must carefully consider the circumstances of each injunction application in context. For those seeking injunctions (such as businesses or property owners that may be subject to protest activity), the case also underscores the importance of collaboration with local authorities and law enforcement to effectively implement and enforce injunctions.

High Court Judge

Bourne J