Practice and procedure – Injunction – Persons unknown – CPR 40.9 – Claimants applying to continue interim injunctions against persons unknown to restrain unlawful protests by environmental activists – Non-party applying for permission to make submissions but not be joined as defendant – Whether non-party directly affected by injunctions – Whether non-party order having locus standi – Whether court retaining residual discretion to refuse permission – Whether submissions limited to existing injunctions – Applications granted
The claimants in the first two claims were, respectively, the freehold owners of a substantial fuel storage and distribution installation and a large office building. The claimant in the third claim marketed and sold fuels to retail customers in England and Wales through a network of petrol stations.
The court granted the claimants interim injunction against persons unknown to restrain unlawful protests by environmental activists. They subsequently applied for extensions of the injunctions for a maximum of one year and various other orders.
On the day before the applications were due to be heard, a non-party (JB), a member of one of the key protest groups, served a witness statement and lengthy skeleton argument asking to be heard by the court exercising its inherent power or by formally recognising her under CPR 40.9, which provided that a person who was not a party but who was directly affected by a judgment or order could apply to have the judgment or order set aside or varied.
JB was not in breach any of the injunctions but argued that she was directly affected by them as she wished to participate in protests to make people aware of the damage caused by fossil fuels. However, she did not want to risk breaching the injunctions, which she believed had a chilling effect on her right to protest peacefully in the manner and at the location of her choosing.
Held: The non-party’s application for permission under CPR 40.9 was granted. The claimants’ application for an extension to the injunctions was granted subject to modifications.
(1) CPR 40.9 had been recognised as the primary route to be used by non-parties wishing to set aside or vary “persons unknown” injunctions. The injunctions in the present case all provided, as was common in cases of this nature, that anyone affected by the injunction might apply to the court to vary or discharge it at any time, upon giving not less than 24 hours’ notice to the claimant. Such a party was required to provide their name and address and to apply to be joined as a defendant. However, it had been recognised that joinder as a defendant was not a pre-requisite to applying under CPR 40.9, notwithstanding the existence of such a provision: Barking and Dagenham London Borough Council v Persons Unknown [2022] EWCA Civ 13; [2022] EGLR 9 applied.
Accordingly, despite the terms of the injunctions, the fact that JB did not wish to be joined as a defendant was not fatal to her CPR 40.9 application which was, on its face, a “strikingly wide” rule which gave no guidance as to how its provisions were to be interpreted; nor was there appellate authority on the issue: Esso Petroleum Co Ltd v Breen considered. National Highways Ltd v Persons Unknown [2022] EWHC 1105 (QB) considered.
(2) Affording someone the right to be heard under CPR 40.9 required them to pass through a gateway by satisfying the court that they were directly affected by the injunction and had a good point to raise. Given the draconian nature of injunctions against persons unknown, and the fact that they might be wide in geographical and/or temporal scope, there should be a low threshold for interested persons to be able to take part.
In order for a non-party to be directly affected by a judgment or order for the purposes of establishing locus standi under CPR 40.9, it was necessary that some interest capable of recognition by the law was, or would be, thereby materially and adversely affected.
The court had to consider whether the final decision in the litigation would adversely affect the interested person, whether by way of civil rights, financial interests, property rights or otherwise. Where orders were sought against unnamed and unknown defendants and where Human Rights were engaged, it was proper for the court to adopt a low threshold for involvement and a flexible/general approach to CPR 40.9, given the nature of such cases. Where the court was being asked to make wide ranging orders and, but for a successful CPR 40.9 application, would not hear any submissions in opposition to those advanced by the claimants, it was desirable to take a generous view of such applications.
(3) The court did not retain a residual discretion whether to permit a non-party to make an application under CPR 40.9 once the gateway criteria had been satisfied. The wording of CPR 40.9 simply established the basis on which someone “may” apply to have a judgment or order set aside or varied; whether they succeeded was a separate matter.
Unlike most court orders, “persons unknown” injunctions were not made against known individuals; and the injunctions so made were the subject of regular review by the court: either at the return date (shortly after an ex parte injunction) or at a review hearing. If a person sought to make submissions under CPR 40.9, it was artificial to regard them as only being permitted to do so in relation to the injunction that had already been made. The very focus of that hearing was whether the injunction that had already been made should be set aside, renewed or varied in some form. Accordingly, JB’s application for permission to apply to set aside or vary the existing injunctions under CPR 40.9 would be granted and the court would take her submissions into account.
(4) The court was satisfied that, unless restrained by continuing the injunctions, the defendants would continue to breach the claimants’ rights, conduct causing harm having already taken place and the expressed intention of the protest groups to continue with similar activities. The defendants were not thereby prevented from congregating and expressing their opposition to the claimants’ conduct including, in a loud or disruptive fashion, in a location close to petrol stations, so long as it did not involve the unlawful conduct prohibited by the injunctions. That struck a fair balance between the defendants’ rights to free assembly and expression and the claimants’ rights. The injunctions would be continued subject to an amendment to reflect that only acts which caused damage were prohibited: Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch) considered.
Myriam Stacey KC and Joel Semakula (instructed by Eversheds Sutherland) appeared for the claimants; Stephen Simblet KC and Owen Greenhall (instructed by Hodge Jones & Allen) appeared for they non-party applicant.
Eileen O’Grady, barrister
Click here to read a transcript of Shell UK and others v Persons Unknown
