Cairn Energy Plc V. Greenpeace Ltd+greenpeace Uk Ltd+stichting Greenpeace Council+greenpeace Environmental Trust Limited+persons Unknown
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2013] CSOH 50 |
| Court | Court of Session |
| Published date | 27 March 2013 |
| Year | 2013 |
| Date | 27 March 2013 |
| Docket Number | P973/11 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 50 | |
| P973/11 | OPINION OF LORD GLENNIE in the petition of CAIRN ENERGY PLC Petitioner; against (FIRST) GREENPEACE LTD, (SECOND) GREENPEACE UK LTD, (THIRD) STICHTING GREENPEACE COUNCIL, (FOURTH) GREENPEACE ENVIRONMENTAL TRUST LIMITED and (FIFTH) PERSONS UNKNOWN Respondents: ________________ |
Petitioner: Dean of Faculty, Walker; Balfour + Manson LLP
Third Respondents: Aidan O'Neill QC, Van der Westhuizen; Patrick Campbell & Co, Solicitors
27 March 2013
Introduction
[1] The petitioner is a company involved in, amongst other things, the exploration and exploitation of petroleum resources in Greenland and the North Sea. The first, second, third and fourth respondents, and possibly also the fifth, are all part of what may, for present purposes, loosely be called the Greenpeace "network" ("Greenpeace"). Greenpeace is well known for its campaigns on environmental issues.
[2] The present proceedings concern events that occurred on 18 July 2011 at the petitioner's premises at 50 Lothian Road, Edinburgh. The petitioner alleges that the respondents, including the third respondent, were engaged in the organisation and coordination of an illegal invasion and occupation of its premises by Greenpeace activists.
[3] The petitioner's averments concerning that invasion and occupation are to the following effect. At about 8:20 a.m. some 40 or so activists invaded their offices on the fourth and fifth floors at 50 Lothian Road. Some were dressed as polar bears. They "ran amock" through the offices, occupying the fifth floor office space and the fourth floor vestibule, ransacking rooms and desks and rifling through cabinets. They caused a nuisance, preventing the petitioner and its staff from engaging in the lawful conduct of their business. They occupied the reception areas and interfered with the phone systems. Some of them chained themselves to desks. As a result, the petitioner and its staff were severely inconvenienced and disrupted and the staff had to vacate areas of the office and eventually had to go home on the direction of the police. The activists posted messages on social networking sites making it clear that they intended to remain on the premises indefinitely. After a few hours, some of the activists left; but the remaining 20 or so activists remained in the premises locked in offices and/or chained to desks until removed by the police later in the day. It is clear that the activists were looking for, amongst other things, the petitioner's Oil Spill Response Plan to which I shall refer more later in this Opinion. The activists took pictures of sensitive commercial information, information which is of commercial value to competitors of the petitioner. While the fact of the environmental activists entering the petitioner's premises on that day was admitted by the third respondent, the details were denied. However, the general nature of what went on that day was supported by affidavit evidence (see below) and was not seriously in dispute.
[4] On 18 July 2011the petitioner obtained interim interdict ex parte against the first to fourth respondents, interdicting them from (1) entering upon the petitioner's premises at 50 Lothian Road, Edinburgh, (2) instructing, procuring, assisting, facilitating or encouraging others or doing any act calculated to disrupt or to attempt to disrupt or to prevent, impede or interfere with the petitioner's lawful business operations and (3) disseminating, printing, uploading, sharing, copying or otherwise publishing any images, photographs, pictures or other material (or copies thereof) taken or recorded by Greenpeace activists present within the petitioner's premises at 50 Lothian Road, Edinburgh on or around that date. At the hearing before me, the Dean of Faculty on behalf of the petitioner accepted that, if permanent interdict were granted, para. (2) should be limited to acts done or threatened in Scotland.
[5] Subsequently, on 26 July 2011, on the petitioner's motion, interim interdict was recalled in so far as directed against the fourth respondent; and an order was made refusing the prayer of the petition against that respondent. On 11 July 2012 the first and second respondents, collectively referred to as "Greenpeace UK", each gave an undertaking to the court in place of the interdict, and the petition in so far as directed against them was dismissed.
[6] The third respondent has given no similar undertaking. It denies being a party to the action in the petitioner's premises on 18 July 2011. Its position is that the action was undertaken by and on behalf of Greenpeace UK. That is the position which Greenpeace UK itself adopts. The third respondent maintains that it did not organise or execute the protest. Its only involvement was to alert its press contacts and its own supporters to the protest. The petitioner challenges that account of events. No doubt partly with an eye to the future, it wishes to establish its case against the third respondent which it regards as legally or de facto behind all or most of the activities of Greenpeace. Accordingly, the present proceedings continue against the third respondent, and only against the third respondent; and the issue is whether the third respondent was involved in that action on 18 July 2011 as alleged by the petitioner.
[7] By consent of both parties, directions were given requiring them to exchange affidavits of witnesses from whom evidence was to be led, with a provision that each party should, if so advised, give notice of its intention to cross examine any particular witnesses for whom affidavits had been exchanged. Any witness in respect of whom notice was given would be called to give evidence and his or her affidavit would stand as evidence in chief; but if no such notice was given in respect of any witness, then the affidavit of that witness was to be taken as his or her evidence without the need for him or her to be called. In the event I heard live evidence from Morag McCracken and William Keil for the petitioner and Jasper Teulings for the third respondent. The evidence of other witnesses was adduced in affidavit form without them being called. In addition, a number of important matters were agreed in detailed joint minutes of admission. As a result, the scope of the factual dispute between the parties at the proof was relatively narrow.
The third respondent and the Greenpeace network
[8] The third respondent has its registered office in the Netherlands. It is commonly known as "Greenpeace International", abbreviated to "GPI". In the petition and answers lodged on its behalf, GPI is described as an active environmental group which organises, encourages and promotes campaigns, protests and demonstrations and other activities internationally with an environmental objective. It is alleged in the petition, and this too is admitted in the answers, that it frequently engages in direct action through the medium of environmental activists, though its activities are not limited to that.
[9] Evidence concerning the structure of the Greenpeace network and the relationship between various Greenpeace organisations was given by Jasper Teulings, a Dutch lawyer who is General Counsel and an Advocaat in the Legal Unit of GPI. He explained that Greenpeace was a global campaign organisation with the aim of promoting nature conservation. It was a Greenpeace tradition "to bear witness to societal atrocities and to campaign against these atrocities through non-violent means." The work was done without financial contributions from corporations or government grants. From small beginnings, the organisation had grown enormously, largely due to donations from individual supporters. It now had 28 national or regional organisations ("NROs") in 42 countries. GPI itself was a Dutch foundation set up for the purpose of international coordination.
[10] It is a matter of admission in one of the Joint Minutes of Admissions that:
"... each NRO is a separate legal entity subject to the national laws of its own country and having its own Board. Subject to the rules on governance that have been agreed between and apply inter se the third respondent and the other members of the Greenpeace network, each NRO operates on a daily basis to a large extent independently of one another and of [GPI]. Each NRO contributes to financing [GPI]. Amongst other things, [GPI] plays a facilitating role to support some less-developed NROs in certain respects, such as IT and fundraising."
Mr Teulings explained that the NROs are the most important players amongst the Greenpeace entities because they develop and carry out campaigns. As well as operating to a large extent independently and individually contributing to financing GPI, the NROs have a say in the strategic direction of GPI, "not the other way round".
[11] Mr Teulings went on to explain that GPI manages the Greenpeace trademark and the three vessels used in Greenpeace campaigns. It had licensed the use of the name "Greenpeace" and its logo to NROs such as Greenpeace UK. Its facilitating role in areas such as IT and fundraising is crucially important for new offices, such as those in developing countries. GPI maintains direct contact with Greenpeace supporters in countries only where there is no national Greenpeace organisation, and in such places, but only in such places, may itself carry out campaigns. However GPI does not have control of the NROs either legally or in practical terms. It is not the headquarters, merely a coordinating body. With input from the NROs, GPI determines and coordinates "top-line global issues, strategies and campaigns". For certain key "global issue areas", such as climate and energy, nuclear energy, oceans, sustainable agriculture and toxics and forests, GPI will help develop the global long-term strategy and campaigns. An example of this is the "Save the Arctic" campaign, which is a key component of the global long term...
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