Summary judgment for anticipatory injunction requires standard test under CPR 24

To obtain summary judgment for an anticipatory injunction for trespass and nuisance it is not necessary for the applicant to demonstrate that each respondent has committed trespass or nuisance and that there is no defence to such a claim.  In National Highways Ltd v Persons unknown and others [2023] EWCA Civ 182 the Court of Appeal has allowed an appeal against dismissal in part of the claimant’s application for a final anticipatory injunction against 109 of 133 named defendants who were Insulate Britain protesters. NHL is the highways authority for the strategic road network under the Highways Act 1980. It brought proceedings in response to a series of protests organised by IB involving protestors sitting on the road surface or gluing themselves to it on highways in and around London and south-east England. The protests caused a serious risk of danger and disruption to the public using the road network. Interim injunctions to restrain the protesters were obtained in relation to the M25 and roads in Kent and continued until trial or further order. Each injunction was originally against persons unknown but NHL was obliged to identify and add named defendants. 113 people arrested during the protests were so added. NHL’s claim, based on trespass and nuisance, was for an anticipatory injunction because of the real and imminent risk of continuing trespass and nuisance across the network unless the defendants were restrained. 24 of the 133 named defendants breached the injunctions and were in contempt of court. Only three defences were served. NHL sought summary judgment for a final injunction against the named defendants and persons unknown citing IB’s stated intention to continue its campaign over the next two to three years. The judge treated the summary judgment application as distinct from the grant of a final injunction and assumed that it could only be granted if NHL could establish tortious liability against each named defendant with no defence. He gave summary judgment against the 24 contemnors only and granted an interim anticipatory injunction against the remaining 109 named defendants and persons unknown. The Court of Appeal confirmed that the test to be applied on an application for summary judgment is the standard test under CPR 24.2, namely whether the defendants have any real prospect of successfully defending the claim. A failure to serve a defence or engage in the proceedings was of considerable relevance. The judge should have concluded that none of the 109 named defendants had any realistic prospect of successfully defending the claim at trial and NHL was entitled to a final injunction against them and against persons unknown. The Court of Appeal made such an order.   Louise Clark is a property law consultant and mediator