APPROVED NOTE OF Judgment
Ineos Upstream Limited and others v Persons Unknown
Approved Note of Judgment of Mr Justice Morgan dated 28 July 2017
This is an ex parte application for interim injunctive relief. The Claimants have appeared by Queen's Counsel Janet Bignell.
As this was an ex parte application, the Court has not heard from the proposed Defendants.
Of the 10 Claimants, the first 4 are companies in the INEOS group. The fifth to tenth Claimants are persons with an interest in land which is the subject of this application.
The Defendants are named in the Claim Form as four categories of persons unknown. There is a description with a view to identifying who does and does not come within each category of persons unknown. The description was drafted in an attempt to mirror the relief sought against the four categories of persons unknown. In the course of the hearing, these categories were further refined and the descriptions altered. There are now 5 categories of persons unknown.
This method of proceeding is now the subject of established authority, and need not be further explained.
The orders sought are extensive and wide-ranging. It was necessary to consider the matters with considerable care before determining the appropriate orders to make. I can indicate which causes of action are being put forward by the Claimants when seeking the orders applied for.
Firstly, the Claimants seek a number of orders, all with the same legal expression, relating to 8 areas of land, and land and buildings in some cases. The order sought prohibits the relevant Defendants from entering or remaining on land or buildings. The cause of action is straightforward, trespass to land.
The second group of orders refers to relevant defendants being forbidden from interfering with the relevant Claimants’ rights to pass or repass over private roads and exercise rights of way. The cause of action is straightforward, in private nuisance to restrain interference with a private right of way, an easement.
The third group of orders relates to exclusion zones. Essentially what is sought is an order preventing the relevant Defendants from interfering with the relevant Claimants’ ability to pass and repass over public rights of way. The cause of action is in public nuisance, where the relevant Claimants have a special interest to sue, a threat of special damage, by reason of the threatened interference with their rights to pass and re-pass over the public rights of way.
The next group of orders sought gave rise to a certain amount of discussion. They have been split into two: the first part restrains harassment contrary to the Protection from Harassment Act 1997 and the second restrains conspiracy to injure by unlawful means.
As to the Protection from Harassment Act 1997, the cause of action is two-fold: (1) to prevent harassment of the Claimants themselves: this is a statutory tort under the Act. The other is harassment of third parties, where the person carrying out the harassment has the intention of hitting at or harming the Claimants. These are contrary to the statute and can be subject of civil injunctions.
As for conspiracy to injure by unlawful means. On examination, the case law is clear that criminal acts and breaches of criminal statutes are unlawful means for the purposes of the tort of conspiracy. A number of different criminal acts are relied upon by the Claimants.
I am satisfied those are causes of actions the Claimants can point to as founding their claim to interim relief.
If these matters had actually occurred, and a threat of continuation or repetition was present, the Court would be minded to grant interim relief restraining the continuation or repetition. As explained, the order sought today is on a quia timet basis. It seeks relief to prevent the wrongdoing from happening. It seems to me, that it is clear on the authorities, that the Court does not step in to prevent future possible wrongdoing unless the risk of it occurring is imminent and real.
I have been provided with a considerable body of extensive, carefully formulated and convincing evidence which has persuaded me that the risk of wrongdoing is both imminent and real, and I have no hesitation in considering that this is an appropriate case for quia timet injunction.
Prima facie one would apply American Cynamid principles to this type of application. If these were applied I would be satisfied that the Claimants have demonstrated that (1) there is a serious issue to be tried, (2) damages would be an inadequate remedy for either side, and (3) the balance of justice is powerfully in the Claimants' favour, such that the Court can step in to see that the law is observed and not wholly flouted.
If I were to do that, there are, or may be, more constraints upon the approach that the Court should take. One possible constraint is Articles 10 and 11 of the Convention on Human Rights and Fundamental Freedoms, which is part of our law. It provides for freedom of expression of opinions.
However, the injunctions sought are to preserve the right of the Claimants to prevent wrongdoing by the Defendants, and those injunctions do not prevent the Defendants expressing their opinions and enjoying their human rights to the full. Rather, they prevent something different, namely the Defendants carrying out unlawful acts which are unjustified and which in many respects amount to a breach of the criminal law. This possible conflict between the private rights of the Claimants to their property, and the rights of the Defendants has been considered by both the European Court of Human Rights in Strasbourg and these Courts on a number of occasions. I was referred to the decision of the High Court Sun Street v Persons Unknown and to the discussion of Roth J at . It is clear that the order that I'm asked to make does not prevent the Defendants exercise of any effective exercise of the right to freedom of expression. Those matters do not prevent the Court from acting in the way described.
I am also asked to consider the potential application of section 12 of the Human Rights Act 1998. Section 12(3) provides that the Court ought not to grant relief affecting the exercise of the Convention right to freedom of expression unless satisfied that the applicant is likely to establish at trial that the publication should not be allowed. I will assume, without deciding, that section 12(3) governs this case. I need to be satisfied that the publication, the expression, of views is likely not to be allowed. The meaning of likely was discussed by Lord Nicholls in the House of Lords’ decision in Cream Holdings v Banerjee at .
I am satisfied it is likely, indeed very likely indeed, that at trial these interim injunctions will become final injunctions, and that the activity restrained will not be permitted, whether as the exercise of freedom of expression or otherwise.
I also have to consider whether it is appropriate to grant these very extensive orders on an ex parte basis. The Court is generally most reluctant to make binding orders where parties have not been heard and act behind their back. The Court is however fully justified in granting ex parte relief in certain types of cases. One such type of case, and this case is one, is where the giving of notice of the application would tip off the defendants, and lead the defendants to do the very thing which the applicant is seeking to restrain. On the evidence before me, I am satisfied that this is a proper case for the Court to act ex parte, and that to decline to do so would be a denial of justice to the Claimants. In truth, all the orders do is say the Defendants must not do acts defined as unlawful acts. They are not restraining anything which might conceivably be within the Defendants’ lawful entitlement.
I will not say anything further about the detailed drafting of the appropriate order. It has been considered properly and fully, a number of amendments and changes have been both volunteered and required and the final form is now clear. Anyone bound by the order will have the final version of the order and will know that the Court was satisfied that the wording is appropriate to this case.
I would ask that a copy of these remarks is made available when the order and the other papers are served on the classes of Defendant which are described in the order.
WARNING: HIGH COURT INJUNCTION IN FORCE
NOTICE AND SERVICE OF ORDER
By way of service of the above High Court proceedings, please follow this weblink to the Order: http://www.ineos.com/businesses/ineos-shale/injunction/
Anyone served or notified of this Order may apply to the Court at any time to vary or discharge this Order or so much of it as affects that person but they must first give the Claimants’ solicitors 3 working days’ notice of such application. If any evidence is to be relied upon in support of the application the substance of it must be communicated in writing to the Claimants’ solicitors at least 2 working days in advance of any hearing.
Court communications: all communications about this Order should be sent to the Court Manager, High Court of Justice (details found at https://courttribunalfinder.service.gov.uk/courts/rolls-building).
Claimants' solicitors: Fieldfisher LLP whose address is Riverbank House, 2 Swan Lane, London EC4R 3TT (Telephone number: 020 7861 4000; Email address: IneosTeam@fieldfisher.com).
Subject to the Defendant(s) providing their name(s), address(es) and proof of identity when making a written request to the Claimants' solicitor (quoting reference OTD/INEOS), the Claimant will promptly make available to the Defendant(s) the Court documents, witness evidence, exhibits and note of judgment via an online file hosting service.