Astrazeneca UK Ltd v Aran Mathai and Others
| Jurisdiction | England & Wales |
| Judge | Judge Moloney QC |
| Judgment Date | 25 July 2014 |
| Neutral Citation | [2014] EWHC 2774 (QB) |
| Date | 25 July 2014 |
| Court | Queen's Bench Division |
| Docket Number | No: HQ14X01254 |
[2014] EWHC 2774 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
His Honour Judge Moloney QC
(Sitting as a Judge of the High Court)
No: HQ14X01254
Mr R Weekes (Instructed by Messrs Reed Smith) appeared on behalf of the Claimant
The Defendants did not attend and were not represented
Approved Judgment
Friday, 25 July 2014
A. Introduction
This case is another episode in the lengthy legal campaign concerning the animal testing company, Huntingdon Life Sciences Ltd ("HLS") and the group of animal rights activists known as Stop Huntingdon Animal Cruelty or "SHAC" for short. The first claimant company is a pharmaceutical company which uses, or at least is believed to use, the services of Huntington Life Sciences.
The two named defendants, Mr Mathai and Mr Beevers, are prominent animal rights activists. The claimant company, its buildings and its staff, have over the last couple of years, on account of AstraZeneca's links with HLS, been the subject of the attentions of SHAC and persons connected with it, the subject of what, as will appear, some would call "robust protest", but others would call intimidation or harassment. Indeed, on the Continent there have been worse things; fire bombings and serious criminal offences have been committed that appear to bear some connection with the campaign. On 7 May 2014, Jay J granted the claimant company (and through the medium of the company its staff and persons connected with it) interim injunctive relief against the first defendant, whom he appointed the representative of SHAC for the purposes of the proceedings, and also against the second defendant as an individual activist who was believed likely to engage in intimidatory activities for or on behalf of SHAC.
B. Representative proceedings
At the start of the hearing in this matter on Wednesday, 23 July 2014, this matter being an application for summary judgment, I considered and ruled on the question of whether it was open to Mr Mathai to apply to me to be removed as the representative of SHAC for the purposes of the case. He denies that he has any sufficient connection with them to be a suitable representative. But I held that it was not open to him to make such an application to me, because his appointment under Part 19 as a representative defendant was a matter that had been finally decided by Jay J, as distinct from the injunction Jay J granted which was an interim matter. As such that decision could only be reconsidered either by an appeal to the Court of Appeal against Mr Mathai's appointment which has not been undertaken, or possibly by an application to another High Court Judge (or a person such as myself sitting as a High Court Judge). But that would have to be based on fresh evidence and/or evidence of changed circumstances since Jay J made his order. Since Jay J's order is less than three months old, there do not appear to have been any change of circumstances, certainly none apart from that short period, on which Mr Mathai could rely. So Mr Mathai, despite his protests, continues to be and will remain the representative of the human beings who together form SHAC.
C. The present application
The present application is an application by the claimants for summary judgment against the defendants and, if granted, for a final injunction against them and the persons unknown on whom it will or may be served in the future. That injunction would deal with the manner in which the person subject to it would be permitted, in effect, to protest against AstraZeneca as part of SHAC's campaign against HLS. That is an important limitation to which I shall return at the close of my judgment.
D. Quia timet relief
An important aspect of this application and of the proceedings as a whole is that it looks solely to the future. This is not a claim for damages or other redress for past wrongs. It is a request for the court's protection from anticipated wrongs that may occur in the future if they are not restrained. The history of past events is, of course, extremely relevant as evidence from which the nature and extent of the future risk can be ascertained, but past loss and past conduct is not at the heart of this claim.
The reason I mention that is because of the inter-relationship between the fact that this is what is called sometimes a quia timet action, an action looking to the future, and the application for summary judgment that I am now hearing. If this were a case based on past loss, an application for summary judgment would be very challenging. As a general rule, defendants are entitled to a trial to determine what they have done, whether it is unlawful and, if so, what harm it has caused. But in this case those questions do not arise. What I am concerned to do is (a) to assess the risk that the defendants, or people in the class restrained, may do unlawful and damaging things in the future and (b) to assess the need, if any, to restrain them. This exercise of computing and evaluating future risk is a different exercise in juridical terms and therefore, in an appropriate case, may lead to a rather different approach to the granting of summary judgment.
E. The standard of proof in cases concerning future tortious conduct
The test that I have to apply in a case of this kind has been stated in the authoritative textbook Spry's Principles of Equitable Remedies 7 th Edition, page 46. I say that with some confidence, because the passage I am about to read was approved by Jack J in the not-dissimilar case of SmithKline Beecham v Avery [2009] EWHC 1488 at paragraph 62. What Jack J said was this:
"A second issue arises as to proof in relation to the likelihood of future tortious conduct. The law as to this is reviewed in the 7 th edition of Spry's Principles of Equitable Remedies at page 46:
'Therefore the criterion by which the degree of probability of future injury must be established is not fixed or invariable but rather depends on the various other relevant circumstances of the case. Hence the greater the prejudice or inconvenience that may be caused by the apprehended injury, if it occurs, the more readily will the court intervene despite uncertainties and deficiencies of proof; and it has been said by Russell LJ that the "degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the relevant circumstances". The court will take account of all relevant matters and will make such orders as appear most just in view of the various interests of the parties and of third persons.'"
It is by reference to that very flexible test that I now have to decide whether there are any triable issues here. Are there any factual questions, the answer to which might make a real difference to the decision that a judge would make when applying what I might call the Spry test? I put it in that way because it is a rather different formulation from what one would apply to a case for past wrongs and past damages.
F. The questions before me
In essence, there are four questions for me, which I shall deal with separately in the following paragraphs: (a) is there any triable issue as to the future risk posed to AstraZeneca and its staff by SHAC itself? (b) Is there a triable issue as to the future risk posed by Mr Mathai in his personal capacity. (As I have stated, he is already and will remain a party to the case in his representative capacity.) (c) Is there a triable issue, in the sense that I have above described it, as to the future risk posed by Mr Luke Beevers to AstraZeneca and its staff? (d) Lastly, if an injunction is to be made, what should be its terms?
G. The position of SHAC, its members and associates
As to the past conduct of SHAC, in particular its willingness to carry out direct action and harassing, intimidatory demonstrations against the staff and premises of companies linked to HLS, it would be re-inventing the wheel for me to go at length into the overwhelming evidence that such a body exists, or at least existed in very recent times (I shall consider its present and future status in a moment) and that such a body habitually conducts itself in such a way against companies in the position of AstraZeneca.
There have been placed before me at least ten previous recent decisions of the High Court and Court of Appeal of a similar nature to the present case, brought by various pharmaceutical companies and similar organisations, in which the nature and conduct of SHAC have been systematically revealed. Further, its members and activists have on several occasions, including in this present year, been sentenced to lengthy prison sentences arising out of the criminal misconduct that they have committed in pursuit of SHAC's campaign against HLS and those who do business with it.
The defendants did not seek to persuade me that SHAC had never engaged in such conduct, or had never posed such a threat to people in the position of AstraZeneca. What they did urge upon me is that, whatever the past position may have been, it is not now sufficiently clear that SHAC still exists as an active threat to warrant summary judgment being granted. Assuming that it is not now sufficiently clear that SHAC poses an active present and future threat, they say that it would not be right to grant summary judgment without going to trial on the issue of whether SHAC does still exist and pose such a risk.
The...
To continue reading
Request your trial