What a fracking nuisance – the Court of Appeal restricts the use of injunctions against persons unknown
Many will recall, and some more painfully than others, the wave of student occupations of university premises that took place a few years ago. Those experiences were a dramatic reminder that student protests represent a clash of competing rights – the students’ right to freedom of assembly and expression, and institutions’ rights as landowners to peaceful possession of their property.
The courts usually strike a fair balance between these rights by restoring possession of occupied premises to the institution where trespassing students have alternative means of exercising their rights of assembly and/or expression that are less intrusive of the institution’s own rights. It is rare that the only means by which a protest can be made is by occupying the particular location chosen by the protesting students.
The rights of institutions as landowners are also capable of protection in the context of very disruptive student protests by the courts granting injunctions against unknown persons in order to prevent further protests, where it is not possible to name the potential protesters/occupiers. Some of our clients have had the benefit of injunctions of this kind. A recent judgment by the Court of Appeal, however, seeks to limit the circumstances in which such injunctions may be granted in future (Boyd & Anor v Ineos Upstream Ltd & Ors ( EWCA Civ 515)).
Injunctions against unknown persons in the above case were applied to protect Ineos from the perceived risk of anti-fracking demonstrations becoming unlawful protests at various sites owned by Ineos. The Court of Appeal counselled caution before granting injunctions against unknown persons “since the reach of such an injunction is necessarily difficult to assess in advance” (par 31).
Injunctions against persons unknown operate against the generality of the population until they are breached by individuals. The Court of Appeal was clearly concerned that individuals would be deterred from engaging in perfectly lawful protest for fear of breaching the injunction. The injunction therefore could have a “chilling effect” on the exercise of the rights to freedom of expression and lawful assembly.
The Court of Appeal also acknowledged that it was not easy to formulate broad principles on which such an injunction could properly be granted. It did however tentatively set out a number of requirements that would need to be met to warrant one, as follows:
• There must be a sufficiently real and imminent risk of wrongdoing (e.g. trespass, damage to property, blocking rights of way);
• It is impossible to name the persons who are likely to commit the wrongdoing unless restrained;
• It is possible to give effective notice of the injunction and the method of giving such notice is to be set out in the order (we have in the past obtained orders permitting service of injunctions via Facebook/Twitter on behalf of our clients);
• The terms of the injunction must correspond to the threatened wrongdoing and must 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 effected to know what they must not do; and
• The injunction should have clear geographical and temporal limits.
Commentators have construed this case as a significant restriction on landowners’ ability to protect their interests before any harm has occurred. Though it is important to note that the judgment does not absolutely rule out injunctions against persons unknown, their scope has been narrowed in deference to the exercise of rights to freedom of expression and lawful assembly. The challenge posed is to those who draft the order to identify with precision the potential conduct that poses a threat to the landowner and to seek clear restraint that is the minimum necessary to manage that risk.