HS2 (High Speed Two Ltd) v William Harewood
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 23 September 2022 |
| Neutral Citation | [2022] EWHC 2457 (KB) |
| Docket Number | KB 2022 BHM 000044 |
| Court | King's Bench Division |
[2022] EWHC 2457 (KB)
Mr Justice Ritchie
KB 2022 BHM 000044
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Birmingham Civil Justice Centre
M. Fry and Brendan Brett instructed by DLA PIPER Solicitors for the Claimants.
Adam Wagner instructed by ROBERT LAZAR for the 33rd and 65 th Defendants.
Harriet Johnson instructed by ROBERT LAZAR for the 18 th Defendant.
Adam Greenhall instructed by instructed by ROBERT LAZAR for the 31 st and 62 nd Defendants.
Hearing dates: 25 – 27 th July 2022 and 22 & 23rd September 2022
APPROVED JUDGEMENT
The Parties
The Claimants are constructing a high speed railway line in England for the benefit of the public in accordance with the will of Parliament.
The Defendants object to the construction of the HS2 railway line and have taken direct action against the construction.
Bundles
For the committal claim which is the subject of this judgment I was provided with: the hearing bundle, an authorities bundle, a supplementary authorities bundle, various cases handed up on paper, various late served witness statements from some, but not all, of the Defendants and some other documents including character references.
After an adjournment for the sanctions decision for D33 I was provided with an expert report from a psychologist and 2 emails from a trainee probation officer.
The Issues
The first issue to be dealt with in this judgment is whether the Defendants breached a mandatory and prohibitory injunction granted by Mr. Justice Cotter on the 11th of April 2022 “the Cotter Injunction” which, in summary, ordered named Defendants and persons unknown to leave the land defined below and not to return. Only sanctions were dealt with because by the time of the start of the hearing all Defendants (save one: D61, who did not attend and D33 who took a technical defence) had admitted the pleaded breaches of the injunction.
The second issue is to determine the appropriate sanctions for any admitted or proven breaches.
This Judgment
This judgment was delivered in Court ex-tempore on 23 September 2022. It relates to all Defendants. I had delivered various decisions in the 4 day July 2022 hearing and also made findings of breach and imposed sanctions on the 6 other Defendants then and given an extempore judgment dealing with all those matters. This judgment brings together the breach and sanctions decisions into one place.
I have attached to this judgment an appendix with the approved transcripts of various of the decisions made in July 2022.
Some of the decisions I made relating to one Defendant (D33) were in two Private hearings relating only to him and only to his private medical information relevant to personal mitigation. The transcripts of those hearings and the judgment I made on the right to privacy relating to that personal information outweighing the need for the whole hearing to be in open Court will not be released publicly and are subject to reporting restrictions.
The land
This claim concerns the property at Cash's Pit Land which adjoins the A51 at Swinnerton, Staffordshire and is approximately 4 acres in size, rectangular in shape and contains a forest surrounded by farmers' fields, positioned South of Stoke on Trent. It includes a thin strip of land adjoining the northern verge of the A51. I shall refer to this land as “CPL”.
Pleadings and chronology of the action
By a notice of application dated the 25th of March 2022 the two Claimants applied for possession of CPL together with a prohibitory and mandatory injunction and declarations and alternative service orders. The application was made against 59 named Defendants and various persons unknown.
The evidence in support of the application was provided in a witness statement of Richard Jordan dated the 23rd of March 2022 and in various other witness statements and affidavits.
By an order made by Mr. Justice Cotter on the 11th of April 2022 at a hearing which was attended by some of the Defendants and both of the Claimants the Judge ordered possession of CPL be granted to the Claimants and granted an injunction which was interlocutory and was to last until the trial or a further order was made in the case or until the 24th of October 2022 (the Cotter Injunction).
By paragraph 4a of the Cotter Injunction the relevant persons were forbidden from entering CPL or remaining there. By paragraph 4b the relevant persons were ordered not to enter CPL, not to interfere with the works at CPL, not to interfere with the fences or gates at CPL, not to damage the property of the Claimants at CPL or of their subcontractors and not to climb onto vehicles or machinery at CPL. By paragraph 4c various persons were ordered to cease tunnelling at CPL and not to encourage or assist tunnelling at CPL.
By paragraph five of the Cotter Injunction it was expressly stated that the Injunction did not prevent the exercise of existing rights of way over CPL or public highways or the rights of the statutory undertakers (service providers). The Cotter Injunction declared that the Claimants were entitled to possession of CPL and alternative service provisions were set out because many of the named Defendants had not provided postal or e-mail addresses or other methods of communication and had not instructed lawyers to accept service on their behalf. The various methods of service were proscribed and included affixing documentation to wooden stakes in the ground at CPL and putting documents to be served in the post box constructed by protesters at CPL and fixing copies of the documents to the entrance at CPL and publishing the documents on various websites. These various alternative service methods were deemed effective by the Cotter Injunction. In addition anyone affected by the Cotter Injunction was permitted to apply to vary but was required to notify the Claimants' solicitors 48 hours before any hearing of any such application to vary and to provide their names and addresses for service. A directions hearing was provided for to determine the steps required in future.
By a Statement of Case also dated 8th of June 2022 and issued on the same day, the Claimants asserted that five named defendants: D18, 31, 33, 61 and 62 and two proposed Defendants namely D64 and D65 were in breach of the Cotter Injunction. The breaches were laid out extensively in the Statement of Claim together with the evidence in support of the assertions that the Defendants were in contempt of court. The Statement of Claim attached the Cotter Injunction and a plan of the site of CPL.
By notice of application also dated the 8th of June 2022 the Claimants applied for an urgent directions hearing for the future conduct of the claim for committal to prison of the seven Defendants listed above for breaches of the Cotter Injunction.
On the 14th of June 2022 an order was made by this Court which dealt with the directions governing the application for committal to prison of the seven Defendants. In that order I joined D64 and D65 to the proceedings on the Claimants' application. I granted permission to the Claimants to rely on the affidavits set out in paragraph 3 of the order. I granted permission to amend the application notice and Statement of Case. I made orders for alternative service on the Defendants because they had not provided postal addresses or electronic addresses and had not instructed lawyers. The alternative service provisions in paragraph five of that directions order were for postal service, electronic service, service on those thought to be hiding in the tunnels under CPL, service on lawyers and service at websites. I also ordered at paragraph 11 that any Defendant who wished to rely on evidence at the final hearing should serve and file the evidence by the 27th of June 2022. Tying the permission to rely on evidence to the direction I gave at paragraph 8, I ordered that the Defendants had to, by the 20th of June 2022, provide the Court and the Claimants' solicitors with a postal address or an e-mail address at which they could be served with documents relating to the proceedings. I also ordered that no evidence other than evidence filed in compliance with the directions order would be admitted at the hearing save with permission of the Court. An application would have to be made under CPR part 23 for such permission.
The committal hearing was listed for four days starting on the 25th of July 2022 in that directions order. The Defendants were required to attend the hearing in person. The Defendants were warned that if the Court, at the hearing, was satisfied that the Defendants or each of them had been served in accordance with the alternative service provisions in the order then the Court could proceed in the absence of those Defendants. I also ordered that evidence as set out in the witness statements filed by the parties would stand as evidence in chief at the committal hearing. I ordered the parties to file and serve bundles containing their evidence and any authorities by the 15th of July 2022 and any skeleton arguments by the 21st of July 2022.
On 25 th July 2022 at the hearing of the claim for committal to prison of the seven Defendants, D61 David Buchan and D64 Stefan Wright were not represented by solicitors or by barristers and did not attend. The other five Defendants did attend and were represented by solicitors and counsel.
At the hearing Defendants D31 and D62 admitted the pleaded breaches of the Cotter Injunction and apologised to the Court and, through their lawyers, had negotiated undertakings which they offered to give to the Court....
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