Boyd v Ineos (2019) EWCA Civ 515 was an appeal from Morgan J who had granted injunctions against persons unknown who were thought to be likely to become protesters at sites selected for the purpose of “fracking”.
The main issue was whether the Judge had been correct to grant injunctions against “persons unknown”. RSC Order 113 of the RSC enabled this. There are also statutory provisions enabling local authorities to take enforcement proceedings against persons such as squatters or travellers contained in Section 187B of the Town and Country Planning Act 1990. Since the advent of the CPR, there has been no requirement to name a defendant in a claim form. Orders have been made against Persons Unknown in appropriate cases.
Longmore LJ, with whom David Richards and Leggatt LJJ agreed, said:-
“29. … it is too absolutist to say that a claimant can never sue persons unknown unless they are identifiable at the time the claim form is issued. …
- … I would … hold that there is no conceptual or legal prohibition on suing persons unknown who are not currently in existence but will come into existence when they commit the prohibited tort.
- … A court should be inherently cautious about granting injunctions against unknown persons since the reach of such an injunction is necessarily difficult to assess in advance.
- It is not easy to formulate the broad principles on which an injunction against unknown persons can properly be granted. …”
“34. I would tentatively frame [the] requirements [for the grant of injunctions against unknown persons] in the following way:-
1) there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
2) it is impossible to name the persons who are likely to commit the tort unless restrained;
3) it is possible to give effective notice of the injunction and for the method of such notice to be set out in the order;
4) the terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;
5) the terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do; and
6) the injunction should have clear geographical and temporal limits.”
“36. The right to freedom of peaceful assembly is guaranteed by both the common law and Article 11 of the ECHR. It is against that background that the injunctions have to be assessed. But this right, important as it is, does not include any right to trespass on private property. …
- … There is no difficulty about defining the tort of trespass and an injunction not to trespass can be framed in clear and precise terms. … It is of course the law that interference with a private right of way has to be substantial before it is actionable … the concept of substantial interference [is] simple enough and well-established …”
“42. … The citizen’s right of protest is not to be diminished by advance fear of committal except in the clearest of cases, of which trespass is perhaps the best example.”
“48. … It is not just the trespass that has to be shown to be likely to be established; by way of example, it is also the nature of the threat. …”