Persons Unknown

January 24th, 2020 by James Goudie KC

The Court of Appeal, in Cuadrilla Bowland Ltd v Persons Unknown (2020) EWCA Civ 9, held, doubting, at paragraphs 46-51 inclusive and 66-69 inclusive, Boyd v Ineos Upstream Ltd (2019) EWCA Civ 515, and in the context of non-violent protest, that the fact that an injunction against ‘persons unknown’ referred to the requirement for an ‘intention’ to impede lawful activities did not render the injunction insufficiently clear or certain to be enforceable by committal to prison following a breach. “Intention” did not have any special legal meaning and was not difficult for a member of the public to understand. On an appeal by persons unknown against committal to prison for contempt of court for breach of an injunction to prevent trespass on the respondents’ land and unlawful interference with their rights. The respondents owned land on which they engaged in lawful “fracking”. The appellants were environmental protesters involved in protests on and near the respondents’ site.The Court said, at paragraphs 40-45 inclusive, that the right to engage in public protest was an important aspect of the fundamental rights to freedom of expression under ECHR, Article 10 and the freedom of peaceful assembly under the Act. Even protests which were deliberately intended to cause disruption fall within the scope of those provisions. Any interference with those rights had to be lawful, necessary and proportionate. Both the junction prohibiting the appellants’ conduct and the sanctions imposed for breach of it were restrictions on the appellants’ exercise of their rights under those provisions and required justification. Where an injunction was granted against “persons unknown’, it was unreasonable to impose upon members of the public the cost of obtaining legal advice in order to find out what the injunction did and did not prohibit them from doing. Therefore, the terms of an injunction had to be sufficiently clear and precise as to enable persons potentially affected to know what they must not do: paragraphs 54-60 inclusive. There was nothing objectionable in principle in principle about including a requirement of intention in an injunction, nor was there anything inherently unclear in doing so. The references to “intention” in the injunction did not have any special legal meaning and were not difficult for a member of the public to understand. Although it was possible to frame a prohibition which applied only to future conduct that actually caused damage, in order to avoid prohibiting lawful conduct it was necessary to include a requirement that the conduct complained of was intended to cause damage. It was not correct that the requirement of the tort of conspiracy to show damage could only be incorporated into a quia timet injunction by reference to the defendant’s intention: paragraphs 61-65 inclusive and 70-74 inclusive.

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