A material change in circumstances imposes a positive duty to seek discharge

Readers may remember the Court of Appeal decision in Ineos Upstream Ltd and others v Persons Unknown and others [2019] EWCA Civ 515 where Ineos Group, at that time the largest participant in the UK onshore fracking sector, obtained a quia timet, or anticipatory, injunction to prevent trespass by the defendants at eight sites owned by individual claimants where fracking was being explored. The seventh defendant was added to the claim, on his application, since he anticipated breaching the terms of the injunction and becoming a newcomer bound by the decision South Cambridgeshire District Council v Gammell [2005] PLSCS 188, but no order was in fact made against him. In April 2019, the Court of Appeal discharged the injunction against some of the categories of persons unknown but maintained it in two other categories pending remission to the court below for reconsideration as to the grant of interim relief in light of the Human Rights Act 1998 and, if granted, an appropriate temporal limit. Little happened after that until March 2022, when the court heard two applications: the seventh defendant’s application to strike out the claim with costs; and the claimants’ application for a general stay of the claim with permission to apply to reinstate the injunction in the case of any material change of circumstances including the lifting of the government’s moratorium on fracking. In Ineos Upstream Ltd and others v Persons Unknown and others [2022] EWHC 684 (Ch) the court refused both applications. It was incumbent on the claimants to pursue their claim. They had written twice – in May 2019 and February 2021 – requesting a listing appointment for directions but had not pursued enquiries when the court failed to respond. They were inexcusably at fault for allowing the claim to be delayed for almost three years, but the delay did not amount to an abuse of process. The judge was also satisfied that the claimants had not warehoused the claim – ie done nothing because they did not ever intend to bring it to a conclusion. However, lapses of planning permissions for two sites in August 2021 was a material change in circumstances which meant that the injunction could not be maintained. The claimants were under a positive duty to seek the discharge of the injunction from that date and their failure to do so amounted to improper conduct. The seventh defendant, not being subject to the injunction, could not say that he had been prejudiced by its continuation. The court had not yet decided that he was entitled to costs. What he had suffered was a delay – since August 2021 – in having his claim for costs determined, but he could have sought an earlier hearing. There would be much greater prejudice to the claimants if the claim form was struck out since they would be at risk of any future claim for injunctive relief being summarily disposed of as an abuse of process. The court discharged the injunction, refused the stay, imposed a costs sanction on the claimants and directed a case management conference for directions on the first available date. Louise Clark is a property law consultant and mediator