Practice and procedure – Trespass – Summary judgment – Final injunction – Claimant companies applying for summary judgment and final injunctions binding named defendants and persons unknown to restrain trespass and other unlawful acts on their sites – Whether defendants having reasonable prospect of defending claim – Application granted
The claimants were three companies who were part of a large petrochemical group and owned, or had a right to possession of, eight sites which were a mixture of oil refineries, terminals, logistics hubs and compounds.
In early 2022, there had been indications of potential threats of trespass and acts of nuisance. The defendants were: (i) persons unknown connected with Just Stop Oil, Extinction Rebellion, Insulate Britain and Youth Climate Swarm, four organisations which had trespassed or stayed on the eight sites; (ii) persons unknown who blocked access to the sites or otherwise interfered with the access to those sites by the claimants, their servants, agents, licensees or invitees; and (iii) named persons who had been involved in suspected tortious behaviour or whom the claimants feared would be involved in tortious behaviour at the eight sites and the relevant access roads.
The four organisations and members of the public connected with them sought to disrupt the petrochemical industry in furtherance of their political objectives and demands. After various public threats and protests, and on police intelligence, the claimants issued a claim form alleging that they feared tortious trespass and nuisance by persons unknown connected with the four organisations at their sites and access roads and seeking an interim injunction prohibiting that tortious behaviour.
Various interim prohibitions were granted and an ex-parte interim injunction protecting the sites. However, protests continued and the claimants applied for summary judgment and a final injunction to last five years with annual reviews.
Held: The application was granted.
(1) Under CPR part 24, the first task of the court was to determine whether the defendants had a realistic prospect of success in defending the claim. The threshold for what was a realistic prospect was higher than a merely arguable prospect of success. On a summary judgment application, the court needed to analyse the evidence to determine whether, overall, it was credible and worthy of acceptance. The court was required to take into account, in a claim against persons unknown, not only the evidence put before it on the application but also the evidence which could reasonably be expected to be available at trial on behalf of both parties. Where reasonable grounds existed for believing that a fuller investigation of the facts of the case at trial would affect the outcome of the decision, summary judgment should be refused.
The burden of proof rested in the first place on the applicant and the guidance in Sainsbury’s Supermarkets v Condek Holdings [2014] EWHC 2016; [2014] PLSCS 190 that, if the applicant had produced credible evidence in support of the assertion that they had a realistic prospect of success on the claim, the respondent was required to prove some real prospect of success in defending the claim or some other substantial reason for the claim going to trial. The test to be applied when a final anticipatory injunction was sought through a summary judgment application was the same as in all other cases: National Highways Ltd v Persons Unknown [2023] EWCA Civ 182, [2023] 1 WLR 2088 considered.
In a case such as the present, where named defendants had taken no part and where other defendants were persons unknown, the safest course was to follow the guidance of the Supreme Court in Wolverhampton City Council v London Gypsies [2023] UKSC 47; [2023] PLSCS 197 and treat the hearing as ex-parte and to consider the defences which the persons unknown could run: Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] 1 WLR 2802; [2020] PLSCS 37 considered.
(2) The power of the court to grant an injunction was set out in section 37 of the Senior Courts Act 1981. An injunction was a discretionary remedy which could be enforced through contempt proceedings. In this case, the court was only dealing with an application for a prohibitory injunction and only on a quia timet basis (the fear of the claimants that an actionable wrong would be committed against them). While the balance of convenience test was initially developed for interim injunctions, it developed such that it was generally used in the granting of final relief.
In law, a landowner whose title was not disputed was prima facie entitled to an injunction to restrain a threatened or apprehended trespass on his land. In relation to quia timet injunctions, the claimants had to prove that there was a real and imminent risk of the defendant causing the torts feared, not that the torts had already been committed: Ineos Upstream v Boyd [2019] 4 WLR 100 and National Highways considered.
(3) In the present case, the balance of convenience and justice weighed in favour of granting the final injunction. The balance tipped further in the claimants’ favour because there were compelling justifications for the injunction against the named defendants and the persons unknown to protect the claimants’ sites and the nearby public from the threatened torts, all at places which were part of the national infrastructure. In addition, there were compelling reasons to protect the staff and visitors at the sites from the risk of death or personal injury and protect the public at large who lived near the sites. The risk of explosion might be small, but the potential harm caused by an explosion owing to the tortious activities of a protester who had no training in safe handling in relation to fuel in tankers or storage tanks or fuel pipes could be a human catastrophe. There were also dangers involved in shutting down any refinery site and the threats of continued action using methods towards a more excessive limit.
(4) Damages would not be an adequate remedy for the feared direct action incursions onto or blockages of access at the eight sites. None of the named defendants were prepared to offer to pay costs or damages. Recovery from persons unknown was impossible and recovery from named defendants was wholly uncertain in any event. While no economic tort was pleaded, the damage caused by disruption of supply and refining works might run into substantial sums. Finally, any health and safety risk, if triggered, could potentially cause fatalities or serious injuries for which damages would not be a full remedy.
Katharine Holland KC and Yaaser Vanderman (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the claimant; the defendants did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Valero Energy Ltd and others v Persons Unknown
