Fitzwilliam Land Company v Gareth Cheesman
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 16 November 2018 |
| Neutral Citation | [2018] EWHC 3139 (QB) |
| Date | 16 November 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHQ18/0595 |
[2018] EWHC 3139 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: IHQ18/0595
Mr Greville Healey (instructed by Clarke Willmott) for the Claimants
Mr Ashley Underwood QC and Mr Adam Tear (instructed by Howe & Co) for the First to Seventh, Tenth and Fourteenth Defendants
Hearing date: 1 November 2018
Judgment Approved
Introduction
This is a case for interim relief arising out of a dispute between landowners and operators of what is called the Fitzwilliam (Milton) Hunt (“the Hunt”) and Defendants protesting about the Hunt. The Claimants comprise the First Claimant which operates the Hunt (“C1”), the Second to Fourth Claimants who are the registered proprietors of the Land identified in the draft Order provided to the Court and the Third Claimant (“C3”) is also joint Master of the Hunt a director of other Claimants. Injunctive relief of a quia timet nature is sought on the grounds of future unlawful conduct which is said to be highly probable if no injunctive relief is in place. The injunctions seek to restrain trespass to land and trespass to goods in particular to animals and chattels of the Claimants.
The Claimants claim for themselves and also as a representative class for the persons identified in the body of the draft order: see Oxford University v Broughton [2004] EWHC 2543 (QB) for an example of a case where this was done.
The Defendants comprise identified persons, some of whom are represented and some of whom are unrepresented. The represented persons who are identified comprise D1–D7, D10 and D14. Those who are identified and not represented comprise D8, D9 and D11–D13. The case against D15 is no longer pursued and he was removed from the action by an order dated 2 November 2018 (since I heard the application) as a result of which D15 is no longer a party to this action. There is a further category comprising persons unknown, namely “persons unknown entering or remaining without the consent of the Claimants on the land identified in the Second Schedule to the brief details of claim and not subject to public rights of way with a view to protesting against the Fitzwilliam (Milton) Hunt (“the Hunt”) or otherwise obstructing the Hunt” (“Persons Unknown”).
The Claimants' evidence is that the Hunt lays and follows scent trails to mimic traditional fox hunting. It also uses a bird of prey, an eagle, to dispatch foxes which are flushed out by the hounds. The Defendants are opposed to hunting foxes and seek to bring to an end the fox hunting. It is apparent that they keep an eye on the Hunt and seek to organise protests with a view to bringing to an end the hunting. Some of the activities are co-ordinated on social media.
The thrust of the Represented Defendants' evidence is that they do not trespass. They do not leave public footpaths and other public rights of way: see D1 witness statement paragraph 2. The Claimants say that there is evidence that they have trespassed by going on the Claimants' land even where there is no right of way. The Represented Defendants say that this is not the case, and in any event, the Claimants have not proven the trespass.
The Represented Defendants say that the hunting activities are illegal, and infringe the Hunting Act 2004. They first say that despite the Claimants' evidence, they were not in fact doing what they claim to be doing and they were carrying out illegal hunting. Further, they say that even if the Claimants were doing what they say, they do not come within the exemption(s) under the 2004 Act. The Defendants have recognised in their skeleton argument (paragraph 5c) that “the issue whether the Claimants' activities are illegal is plainly a factor to be weighed in the balance when this Court conducts the proportionality exercise…At this stage these Defendants recognise thatthe Court will not have sufficient evidence on which to decide the illegality issue in relation to whether there is an arguable case…”
The Claimants say that even if there was illegality, which they deny, it is not capable of justifying the trespass. They further submit that this is not a bar to an injunction. The Defendants claim that this is a relevant matter to the balance of convenience.
As regards the issues to be considered, they are as follows:
(1) The parties are agreed that the threshold is not American Cyanamid, but whether it is more likely than not that the Claimants will establish a need for an injunction at trial. In this regard, is it more likely than not that there has been a trespass to land? By reference especially to photographic evidence, the Claimants say yes, but the Defendants deny this;
(2) Related to the above, there is a question as to whether the Claimants have shown to the level required an “imminent and real risk” of future trespass to the Claimants;
(3) There are balance of convenience issues to consider including
a. The evidence as to whether the activities of the Defendants are illegal;
b. The effect of convictions of persons within the Claimants' camp;
c. The evidence of assaults committed by persons within the Claimants' camp.
The facts
The Claimants own the land which is referred to on the plan annexed in the draft Order. The Claimants' claim issued on 5 October 2018 is for extensive relief and is not limited to trespass. It includes injunctions against harassment mirroring that sought in the final relief. In fact, the order granted on an inter partes hearing on 16 th October 2018 was limited to an injunction to prevent the Defendants from trespassing on any part of the land, but carving out the right to use rights of way and the like.
Much of the evidence before me, contained in numerous witness statements, goes beyond trespass with allegations of intimidatory conduct and/or harassment. There are allegations going in both directions as between the Claimants and the Defendants. It is difficult to consider the allegations because there are numerous allegations contained in numerous witness statements. However, a useful way of looking at some of the evidence is by reading the first statement of Mr Cheesman (D1) and reading it alongside other evidence to which he responds. He says at paragraph 22 that his protests are peaceful, polite and do not involve any trespass (paragraph 22).
The way in which the application has been presented before the Court has been to major on the evidence about trespass to land and to supplement that by evidence about trespass to goods including animals. In the application before me, the Claimants have sought two elements of the final relief by way of interim injunction, namely relief in relation to trespass to land, and to animals and chattels. The reason why the Claimants seek the latter is because the Hunt uses land other than its own with the consent of third parties and wishes to protect their animals and chattels when on such other land. In view of this, there has been very limited reference by Counsel for the Claimants to the evidence about harassment and the like.
The relief is now sought until trial. That might be a long period of time without an order for speedy trial, but will be much shorter if a speedy trial is ordered. The relevance of this is that the shorter the period of time for which the relief is granted, the less the risk of injustice by the imposition or refusal of an injunction.
There is controversy as to whether there has been trespass at all. Mr Cheesman, D1, has given very extensive evidence challenging the case of the Claimants that there has been trespass. This puts under sharp focus the evidence as to the extent to which he and others have or may have trespassed. Similarly there is evidence from the other Represented Defendants putting trespass in issue. I have to consider in this regard:
a. numerous photographs;
b. video evidence;
c. witness evidence on behalf of the Claimants, of the named Defendants and of an anonymous witness.
Photographs appear in the exhibit EAT3 to the statement of Elizabeth Anne Thomas. Whilst the majority of them are said to have been on the Claimants' land, a substantial part of them are on third party land. They appear to show on numerous dates some of the named Defendants and other persons unknown on fields and crossing into fields which are said to be part of the property of the Claimants. I bear in mind the criticism that the evidence could or should have been better prepared by identifying the location of each photograph on grid reference maps so as to be more specific about the allegations of trespass, and so as to show that the persons were not exercising a public right of way.
Nevertheless, the schedule of the photographs identifies the Defendants by name and gives dates of the photographs and distinguishes between the Claimants' land and third-party land. I make the following observations, namely
(1) It is said that the photographs are off the public right of way save for photograph number 43;
( 2) D1, who has given detailed evidence, is shown in many of the...
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