Practice and procedure – Trespass – Injunction – Claimant applying for final injunctions against named defendants and persons unknown to prevent protesters blocking roads – Whether claimant establishing that conduct of defendants constituted trespass, private nuisance and/or public nuisance – Whether protesters having defence under articles 10 and 11 of European Convention on Human Rights – Application granted
The claimant was a statutory corporation which was both the highway authority and the traffic authority for Greater London roads. The defendants, including persons unknown, were supporters of, and activists connected with, “Insulate Britain” (IB), an environmental activist group which took direct protest action.
The claimant brought two actions against the defendants arising from disruptive protests on the highway since September 2021 under the auspices of IB and other affiliated groups. A large proportion of those protests involved protesters deliberately blocking roads by sitting down in the road, and often gluing themselves to its surface and/or “locking” themselves to each other to make their removal more time-consuming. 129 named defendants were alleged to have taken part in one or more IB protests. Interim injunctions were granted on an urgent and without notice basis.
The claimant sought a final prohibitory injunction against 129 of the 138 named defendants and certain defined persons unknown. The claimant made its claim pursuant to its duties under section 130 of the Highways Act 1980 on the basis that the conduct of the defendants constituted trespass, private nuisance and/or public nuisance.
The claimant sought a final order that prevented the blocking, for the purpose of protests, of roads and surrounding areas at 34 identified locations (IB roads) which were important parts of the Transport for London Strategic Road Network which broadly comprised the most important roads in Greater London, carrying a third of London’s traffic, despite comprising only 5% of its road network length.
Held: The application was granted.
(1) To grant a final anticipatory, prohibitory, injunction against named defendants, the court had to be satisfied that there was a strong probability that the defendants would imminently act to infringe the claimant’s rights and the ensuing harm would be so grave and irreparable that damages would be an inadequate remedy. There was no requirement for the claimant to prove that its rights had already been infringed; but only that there was a real and imminent risk that they would be infringed. The question was whether there was a real and imminent risk that one or more of the three torts would be committed by the defendants: Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch) and National Highways Ltd v Persons Unknown [2022] EWHC 1105 (QB); [2023] EWCA Civ 182 considered.
On the evidence, the conduct, both in the past and threatened in the future, of the defendants in protesting on the IB Roads by deliberately blocking and obstructing those roads, prima facie constituted the torts of trespass, private nuisance and public nuisance. There was a real and imminent risk of further protests (on the part of the defendants) and those protests would infringe the claimant’s rights. The ensuing harm from further protests on IB Roads would be grave and irreparable. Damages would be inadequate for such harm because much of it would be unquantifiable and the claimant could not recover for losses sustained by others. Furthermore, the defendants were unlikely to be able to pay such damages as might be quantifiable: DPP v Ziegler [2021] UKSC 23 considered.
(2) A protest which obstructed the highway might be lawful by reason of articles 10 and 11 of the European Convention on Human Rights which provided a defence to the alleged torts of trespass (and private and public nuisance). By participating in IB protests on the public highway, the defendants were exercising their rights to freedom of expression and assembly in articles 10 and 11 respectively. The grant of a final injunction would interfere with those rights. However, making a final injunction struck a fair balance between the rights of the individual and the general interest of the community, including the rights of others. Accordingly, it was just and convenient for a final injunction to be made against the named defendants.
(3) In principle, “persons unknown” included both anonymous defendants who were identifiable when the proceedings commenced, but whose names were unknown, and “newcomers” (people who in the future would join the protest and as a result would become “persons unknown”). A newcomer who subsequently knowingly acted in breach of the terms of the injunction made himself a party to the proceedings and was bound by the injunction. There was no need to serve formally that person with the proceedings for him or her to become a party and be bound by the injunction.
Even after a final injunction was granted the court retained the right to supervise and enforce it; the proceedings were not at an end until the injunction was discharged. Where a newcomer breached the injunction and made himself a new party to the proceedings, he could apply to set aside the injunction. Persons unknown had to be described with sufficiently clarity to enable persons unknown to be served with proceedings. All persons unknown injunctions, including final injunctions ought normally to have a fixed end point for review and it was good practice to provide for a periodic review: National Highways Ltd and Barking and Dagenham London Borough Council v Persons Unknown [2022] EWCA Civ 13; [2022] EGLR 9 applied.
(4) The guidelines for the grant of interim injunctions against persons unknown in Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] PLSCS 37, subject to necessary modifications, applied also to the grant of final injunctions against persons unknown.
In the present case, identified defendants had been joined as named defendants and had been served with the claim and subsequent documentation. The provisions for alternative service in future ensured fairness for any newcomers who would, under the final injunction, have liberty to apply to the court to vary or discharge the final injunction against them specifically or everyone. The identification of “persons unknown” was clear, precise, and targeted their conduct which had been ongoing for many months and was threatened to continue.
The final injunction had a clear geographical limit, being restricted to the IB Roads which were select in number, of high strategic importance, and which were also liable to be targeted by IB. Accordingly, it was just and convenient to grant the final injunction against the persons unknown.
Andrew Fraser-Urquhart KC and Charles Forrest (instructed by Transport for London) appeared for the claimant; Named defendants 9 and 135 appeared in person; The other defendants did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Transport for London v Persons Unknown and others
