Guidance regarding injunctions against persons unknown: Boyd and another v Ineos Upstream Ltd and others

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In Boyd and another v Ineos Upstream Ltd and others, Longmore LJ dealt with the tricky issue of injunctions against persons unknown, who were thought to be likely to become protesters at sites selected by the respondents for the purpose of exploration for shale gas by fracking.

Although lawful in this jurisdiction, fracking attracts considerable media interest and controversy. It involves the hydraulic fracturing of rock formations, which environmentalists allege causes seismic activity, water contamination and methane clouds, as well as injury and harm to people and property. Also, because shale gas is a fossil fuel, it contributes to global warming and the ill-effects of climate change.

The shale gas industry says that it wishes to contribute to the economy and society by offering employment and providing an alternative fuel source, but it recognises its obligations to protect its suppliers, employees and local people, and those who want to engage in peaceful protest.

At the outset, it’s worth noting that Longmore LJ’s judgment usefully but “tentatively” describes “the requirements necessary for the grant of the injunction against unknown persons, whether in the context of the common law or in the context of the ECHR”.

Case background

This case exemplifies conflict arising between those wanting to make their views known about environmental issues by protesting at a particular site against those wanting to utilise and exercise their rights in property. It was mainly concerned with the effect Morgan J’s orders had on civil liberties, with reference to the very broad terms of the injunctions against a wide category of persons unknown. The Human Rights Act 1998 came into play, with reference to basic freedoms such as the right to peaceful protest and free speech.

Morgan J granted injunctions to the respondents against persons unknown. The respondents asserted that those persons unknown were likely to cause difficulties and protest at the respondents’ fracking sites. A key point, though, was that those persons unknown had not yet participated in any such protest. The scope of the injunctions prevented the persons unknown from trespassing on the respondents’ sites and from doing anything on site access roads, or to vehicles using the same roads, which caused danger.

The appellants obtained permission to appeal against these injunctions. It is the guidance provided by Longmore LJ that will be mainly considered.

The guidance in the judgment

Longmore LJ helpfully confirmed the lawfulness of making injunctions against persons unknown. He then, as mentioned above, “tentatively” set out the requirements (guidance) to be considered when making injunctions against person unknown:

  • There must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief (that is, an injunction restraining wrongful acts which are threatened or imminent but have not yet commenced).
  • It is impossible to name the persons who are likely to commit the tort unless restrained.
  • It is possible to give effective notice of the injunction and for the method of such notice to be set out in the order.
  • The terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct.
  • The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do.
  • The injunction should have clear geographical and temporal limits.

Mindful of the facts, Longmore LJ held that the first three requirements posed no problem in that there was a real and imminent risk of the relevant torts being carried out, but that, in any event, permission had not been granted to challenge that on appeal. He also found that there were (unknown) persons likely to carry out the torts who could not be named; there are clear provisions in the order about service of the injunctions and there is no reason to suppose that these provisions will not constitute effective notice of the injunction.

But the Court of Appeal’s real concern was with the fourth, fifth and sixth requirements.

The court held that the right to freedom of peaceful assembly exists in common law and pursuant to Article 11 of the European Convention on Human Rights (ECHR), but it also recognised that it did not allow any right to trespass on private property. However, the right of protest could not be taken away because someone feared committing a (potential) offence. Given this, the present case did not fit the fourth requirement.

Of the fifth requirement, Longmore LJ held that some of the terms of the order were worryingly too wide and insufficiently clear. One of the injunctions granted stopped the appellants from doing acts described as “slow walking” and “unreasonably obstructing the highway… without lawful authority or excuse”. This would have required being sure of the appellants’ actual intentions, which could not have presently been known.

With regard to the sixth requirement, quite simply Longmore LJ held that the lack of reference to time limits in one of the injunctions was not acceptable, even though geographical limits had been set out.

With reference to this new guidance, the Court of Appeal allowed the appeal in part by discharging some of the injunctions but maintained some of the others.

Practical implications for practitioners

For practitioners advising clients about potentially seeking injunctive relief against persons unknown, the guidance prescribed by Longmore LJ should be followed carefully, if only to protect a client on costs.

Carefully review the terms of the actual relief your client is seeking. In this case, the dispute was about several sites, but given at least one site wasn’t going to be immediately affected, there wasn’t need for injunctive relief for that site. The message is clear, don’t be too wide-ranging with seeking relief; instead, remember you can always apply later, if necessary.

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