(1) MBR Acres Ltd v John Curtin

Hearing dates: 24–28 April, 2–5, 9, 11, 12, 15, 17–19, 22–23 May 2023, 23 June 2024, 26 March 2024 and 7 May 2024

Approved Judgment

This judgment is divided into the following sections:

A: Introduction

This is the final judgment in this civil claim brought by the Claimants against both known and unknown individuals. The common link between the Defendants is that, at one time or another, they have engaged in some form of protest against the activities of the First Defendant at its site at Wyton, Cambridgeshire.

Whilst the claim has been pending before the Courts, the law — as it applies to “Persons Unknown” — has been in a state of flux. The decision of the Supreme Court in

Wolverhampton City Council & others -v- London Gypsies and Travellers & others [2024] AC 983 (heard on 8–9 February 2023 with judgment handed down on 29 November 2023) clarified but also significantly changed the law as it concerns the grant of injunctions against “Persons Unknown” where that target class is protean and the injunction applies to what has been termed ‘newcomers’.

Whilst the evidence relating to this claim was heard at a trial between 24 April 2023 to 23 May 2023, the trial was adjourned to await the Supreme Court decision in Wolverhampton. Further hearings were fixed on 26 March 2024 and 7 May 2024 for the Court to consider whether, in light of the Supreme Court's decision, the Claimants should be given an opportunity to file any further evidence and to consider final submissions of law consequent upon the Wolverhampton decision.

At the hearing on 26 March 2024, I directed that the final hearing in the claim should be fixed for 7 May 2024. I directed that the Claimants must file their final submissions by 30 April 2024 and that, in addition to publicising the date of the final hearing on notices at the Wyton Site, and online, the written submissions must be served on Liberty and Friends of the Earth, who had intervened in the Wolverhampton case (“the Interested Parties”). I gave the Interested Parties an opportunity to file written submissions for the final hearing.

I received written submissions from Counsel instructed by Liberty, dated 3 May 2024.

I also received a letter, dated 30 April 2024 from Friends of the Earth (“FoE”). FoE expressed concern, due to their limited resources, of the risk that an adverse costs order might be made against them. In their letter, FoE stated that it had made an application for a Protective Costs Order in a civil claim brought in 2019 against “Persons Unknown” in a fracking protest case. The application was rejected, and FoE were ordered to pay £4,500 in costs. Because of these funding concerns, and also because FoE's campaigning objectives do not embrace the protest at the Wyton Site, FoE did not file written submissions. They did, however, send a copy of the written submissions, and a witness statement of David Timms, FoE's Head of Political Affairs, dated 25 November 2022, which had been filed with the Supreme Court in the Wolverhampton case. In their covering letter, FoE said:

“In Wolverhampton, the Supreme Court rejected our submissions as to the availability of persons unknown injunctions as a matter of principle, but our submissions may include relevant considerations for the Court in terms of criteria and the procedural safeguards for persons unknown injunctions in the protest context. In particular, the evidence of Mr Timms refers to our own experience of the serious chilling effect of these injunctions, in terms of their deterrence of lawful protest including lawful, peaceful, direct action protest. We would stress that the latter is a recognised and legitimate part of freedom of speech and assembly protected by the common law and Articles 10/11 ECHR.”

I am very grateful to both Liberty and Friends of the Earth for their submissions, which I have considered in writing this judgment.

I consider the Wolverhampton decision in Section M of this judgment ([333]–[362] below). In brief summary, prior to Wolverhampton, the previous method of attempting to restrain the activities of ‘newcomers’ depended upon the ‘newcomer’ becoming a party to existing litigation by doing some act that brought him/her within one or more categories of defendant who were party to the litigation and upon whom the Claim Form had been deemed to be served by some method of alternative service authorised by the Court. The