Astellas Pharma Ltd & others v Stop Huntingdon Animal Cruelty & others (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Rimer,Lord Justice Ward |
| Judgment Date | 29 June 2011 |
| Neutral Citation | [2011] EWCA Civ 752 |
| Docket Number | Case Nos: A2/2010/1552–1555 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2011 |
[2011] EWCA Civ 752
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. D. Pittaway Q.C.)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Moore-Bick
and
Lord Justice Rimer
Case Nos: A2/2010/1552–1555
HQ03X02622, 2623, 2624 & 2625
Mr. Tim Lawson-Cruttenden (solicitor-advocate) (instructed by Lawson-Cruttenden & Co) for the appellants
The respondents did not appear and were not represented
Hearing dates: 7 th March 2011
Background
These appeals arise out of attempts by a number of companies engaged in or in some way related to the pharmaceutical industry to control the activities of animal rights protestors by means of injunctions obtained under the Protection from Harassment Act 1997. They all raise the same issue and a similar procedural history. It is therefore convenient for the purposes of this judgment to refer simply to the first of the four cases, Astellas Pharma v SHAC, on the understanding that the position is for all practical purposes the same in relation to the others.
The proceedings were started in August 2003 when a claim form was issued naming Stop Huntingdon Animal Cruelty ("SHAC"), Animal Liberation Front ("ALF") and three individuals as defendants. In June 2004 they were stayed pending a decision in similar proceedings brought against SHAC by Huntingdon Life Sciences and further stayed in November 2007 pending a decision in other similar proceedings brought against animal rights campaigners by Oxford University. Following the disposal of those proceedings the stay was lifted and an application was made for summary judgment.
SHAC and ALF are both unincorporated associations and since they have no juridical personality cannot be parties to proceedings. However, on 17 th December 2007 Irwin J. ordered that Dr. Max Gastone and Mr. Robin Webb be joined as a defendants to represent the members of SHAC and ALF respectively pursuant to CPR rule 19.6, subject to the determination in the proceedings brought by Oxford University of the question whether ALF was in fact an unincorporated association and, if so, whether Mr. Webb was an appropriate person to represent its members. In the event, however, the Oxford University proceedings were terminated by a consent order in October 2009 without those questions being decided and these actions have proceeded since then on the basis that Mr. Webb represents the members of ALF. The position is the same in each of the other cases: Dr. Gastone and Mr. Webb are personal defendants and also act in representative capacities.
On 16 th March 2010 Mr. David Pittaway Q.C. sitting as a Deputy High Court Judge gave summary judgment for the appellants and stood the matter over for further submissions to be made about the appropriate form of order. The appellants sought an order restraining various persons identified in the draft submitted to the court as "Protestors" from pursuing a course of conduct amounting to the harassment of various people described as "Protected Persons". Since the action against SHAC and ALF was proceeding as a representative action, the appellants asked the judge to include in the order a paragraph directing that it be enforceable against all Protestors as defined in it. The court's permission was necessary before it could be enforced against represented parties because rule 19.6 (4) provides:
"Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule –
(a) is binding on all persons represented in the claim; but
(b) may only be enforced by or against a person who is not a party to the claim with the permission of the court."
The judge made an order in the very wide terms sought by the appellants restraining the Protestors from harassing the Protected Persons, from demonstrating within 100 yards of their homes or any premises occupied by them and from conducting protests in certain specified areas. It is unnecessary for present purposes to refer to the detailed provisions of the order; its purpose was to prevent the Protestors from intimidating the appellants' employees and others who had dealings with them. However, the judge declined to give permission to enforce the order against all Protestors because he considered that it would be unjust to make an order against unidentified persons without giving them an opportunity to be heard and without giving some consideration to their individual circumstances. In doing so, he followed the decision of Teare J. in SmithKline Beecham Plc v Greg Avery [2007] EWHC 948 (QB). It is against the Deputy Judge's refusal to include the additional paragraph in the order that the appeal is brought.
Before going any farther it is necessary to refer to some of the provisions of the Protection from Harassment Act 1997. The statute prohibits a person from pursuing a course of conduct which he knows or ought to know amounts to harassment of another. Remedies may be obtained in civil proceedings in the form of damages and an injunction. Harassment itself is also a criminal offence punishable on summary conviction by imprisonment for up to six months: see section 2; and the breach of an injunction restraining harassment, which is a separate offence, is punishable on indictment with a maximum of five years' imprisonment: see sections 3, subsections (6) and (9).
When the statute was enacted it applied only to simple harassment by one person of another, but the legislation was amended by the Serious Organised Crime and Police Act 2005 by the addition of subsection 1 (1A) which prohibits the harassment of two or more persons with a view to persuading a third person to act or refrain from acting in a particular way. The proceedings in the present case were brought under that subsection, one purpose of which was to prohibit the harassment of employees or members of their families or others in order to put pressure on a third party.
Section 1 (1A) provides as follows:
"A person must not pursue a course of conduct—
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above)—
(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do."
Section 3A (also introduced by the Serious Organised Crime and Police Act 2005) gives the court power to grant an injunction where there is an actual or apprehended breach of section 1 (1A). It provides as follows:
"(1) This section applies where there is an actual or apprehended breach of section 1 (1A) by any person ("the relevant person").
(2) In such a case—
(a) any person who is or may be a victim of the course of conduct in question, or
(b) any person who is or may be a person falling within section 1 (1A) (c),
may apply to the High Court or a county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.
(3) Section 3 (3) to (9) apply in relation to an injunction granted under subsection (2) above as they apply in relation to an injunction granted as mentioned in section 3 (3) (a)."
Section 3 (3) (a) gives the claimant the right to apply for a warrant of arrest if he considers that the defendant has done something which he is prohibited from doing by an injunction granted for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment under the Act.
Section 3 (6) provides as follows:
"Where—
(a) the High Court or a county court grants an injunction for the purpose mentioned in subsection (3) (a), and
(b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,
he is guilty of an offence."
Finally, it is necessary to mention section 24 of the Police and Criminal Evidence Act 1984, which gives a constable power to arrest without a warrant any person whom he considers to be committing, or whom he suspects to be about to commit, an offence where it is necessary to do so for various reasons, including to allow the prompt and effective investigation of the offence or of the conduct of the person in question.
The Appeals
Before the judge submissions were made as to the manner in which the injunction could be enforced and against whom. For practical reasons the appellants are concerned to ensure that the police, whose responsibility it is in the interests of public order to supervise and control demonstrations of the kind contemplated by the injunction, are able to enforce it by exercising their power of arrest in respect of an offence under section 3 (6) of the Act. It was for that reason, apparently, that the appellants sought the court's permission to enforce the orders against all Protestors. In fact, the relief they sought went rather wider than that, because the paragraph which they asked the judge to include in the order read:
"This Order is enforceable against all Defendants and Protestors under section 3 (6) Protection from Harassment Act 1997."
As can be seen, it goes beyond merely giving permission to enforce the order and for practical purposes amounts to a declaration that any breach of it by any person who falls...
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