Protests on the strategic road network are not always unlawful or a trespass

The court has refused to declare that use of the strategic road network (SRN) by members of Insulate Britain (IB) for the purposes of protest which causes an obstruction of the public highway is unlawful and a trespass in National Highways Ltd v Persons unknown and others [2022] EWHC 1105 (QB). The case concerned three sets of proceedings brought by National Highways Ltd against 133 named defendants, members of IB, who had all been arrested by various police forces in relation to protests. IB demands that the government undertakes to insulate all social housing in the UK by 2025 and all other housing by 2030 to save the planet from climate change and soften the blow of rising fuel prices. Protests have blocked roads and disrupted other parts of civil society, including magistrates’ courts. All have been peaceful protests. Interim injunctions were granted in September and October 2021 in respect of the M25, the SRN in Kent and certain M25 feeder roads. Breaches of those injunctions led to a number of contempt of court applications, resulting in sanctions including imprisonment against 24 of the named defendants. The claimant now sought summary judgment and a final injunction. The claimant was only entitled to summary judgment if the court considered that the defendants had no real prospect of successfully defending the claims in trespass and public and private nuisance and there was no compelling reason why they should be disposed of at trial. The court found that there was sufficient evidence to grant summary judgment against the 24 defendants who were subject to findings of contempt of court, on the basis of those decisions, and granted final injunctions against them. The position of the remaining 109 defendants was very different. The claimant had only provided very general details of arrests by various police forces in connection with protests: there was no identification of which defendant was arrested on what date or of the activities which led to arrest. The evidence was manifestly inadequate to enable the court to decide that there was no real prospect of a successful defence to the claims by each of the 109 defendants. The court was satisfied that the test for the grant of interim injunctions was easily met; the actions previously carried out and those threatened by IB amounted to a strong basis for an action in trespass and private and public nuisance; and given the scale of disruption and the impracticality of pursuing a diverse group of protestors, damages would not be an adequate remedy. However, in deciding the terms of the injunctions, the court had to be conscious of the right to protest. The judge approved terms banning the deliberate obstruction of the carriageways of the roads on the SRN but would not eliminate the possibility of lawful protests around or in the area of those roads. He also refused the declaration sought by the claimants since it does not automatically follow in all cases that use of the SRN for protests is unlawful or a trespass: DPP v Ziegler [2022] AC 408. Interim injunctions were granted against the 109 named defendants and the unknown defendants. Louise Clark is a property law consultant and mediator