The company carrying out the construction of HS2 and the Secretary of State for Transport have obtained anticipatory injunctive relief over the whole of the HS2 route, from London to Crewe, to restrain trespass and nuisance through unlawful protests against the building of HS2 which have hindered its construction in High Speed Two (HS2) Ltd and The Secretary of State for Transport v Four Categories of Persons Unknown and Ross Monaghan and 58 other named defendants [2022] EWHC 2360 (KB).
HS2 is being built under powers granted by parliament. The claimants have been given extremely wide powers to obtain or take possession of land for the purpose of constructing HS2, provided the prescribed procedures are followed.
The claimants argued that protests against HS2 involve disruption of works on the HS2 land and of the use of the roads around it, causing inconvenience and danger to the claimants and other road users, amounting to trespass and nuisance. They feared such interference would continue along the whole of the route, which warranted an anticipatory injunction. To justify such an order, the court must be satisfied that the risk of an infringement of the claimants’ rights causing loss and damage is both imminent and real (Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515). The defendants argued the claimants were seeking to restrain trespass on land to which they had no immediate right to possession and lawful protest on the highway.
The court was satisfied that:
- The claimants had the powers they asserted over the land in question and were either in lawful occupation or possession of the land or had the immediate right to possession of it. It did not matter that they were not yet in possession of all of it.
- There was sufficient evidence of trespass and nuisance: there had been many episodes of trespass along the HS2 route by protestors, including local residents, academics, environmentalists and numerous multi-cause transient protestors. Activities undertaken included breaching fencing and damaging equipment; climbing on to, under and into vehicles and equipment; theft; property damage and abuse of staff. There had been significant violence, criminality and sometimes risk to life of activists and HS2 staff and contractors.
- Unless restrained, the trespass would continue and the risk of substantial damage was both real and imminent.
- The defendants had all been properly identified. Where known, they had been joined to the proceedings and the four categories of “persons unknown” was an appropriate means of seeking relief in the circumstances. The definitions would not capture innocent or inadvertent trespass.
- The terms of the injunction were sufficiently clear and precise to enable persons affected to know what they must not do. The itinerant nature of the protests justified the wide geographical scope of the order (Canada Goose UK Retail Ltd v Persons Unknown [2020] 1 WLR 2802).
- There was no unlawful interference with Article 10 and 11 of the European Convention on Human Rights because there is no right of protest on private land, there is no right to cause the type and level of disruption to be restrained by the order and the interference with protest on the public highway was proportionate.
Louise Clark is a property law consultant and mediator
