Joseph Boyd v Ineos Upstream Ltd & 9 Others

Hearing dates: 5 th & 6 th March 2019

Approved Judgment

Introduction

This is an appeal from Morgan J who has granted injunctions to Ineos Upstream Limited and various subsidiaries of the Ineos Gropu (“the Ineos companies”) as well as certain individuals. The injunctions were granted against persons unknown who are thought to be likely to become protesters at sites selected by those companies for the purpose of exploration for shale gas by hydraulic fracturing of rock formations, a procedure more commonly known as “fracking”.

Fracking, which is lawful in England but not in every country in the world, is a controversial process partly because it is said to give rise to (inter alia) seismic activity, water contamination and methane clouds, and to be liable to injure people and buildings, but also because shale gas, which is a fossil fuel considered by many to contribute to global warming and in due course unsustainable climate change. For these reasons (and no doubt others) people want to protest against any fracking activity both where it may be taking place and elsewhere. In the view of the Ineos companies these protests will often cross the boundary between legitimate and illegitimate activity as indeed they have in the past when other companies have sought to operate planning permissions which they have obtained for exploration for shale gas by fracking. The Ineos companies have therefore sought injunctions to restrain potentially unlawful acts of protest before they have occurred.

The judge's order extends to 8 relevant sites described in detail in paras 4–7 of his judgment; Sites 1–4 and 7 consist of agricultural or other land where it is intended that fracking will take place; Sites 5, 6 and 8 are office buildings from which the Ineos companies conduct their business.

The Claimants

There are ten claimants. The first claimant is a subsidiary company of the INEOS corporate group, a privately owned global manufacturer of chemicals, speciality chemicals and oil products. The first claimant's commercial activities include shale gas exploration in the UK. It is the lessee of four of the Sites which are the subject of the claimants' application (Sites 1, 2, 3 and 7). The lessors in relation to these four sites include the fifth to tenth claimants. The second to fourth claimants are companies within the INEOS corporate group. They are the proprietors of Sites 4, 5 and 6 respectively. The fourth claimant is the lessee of Site 8 and it has applied to the Land Registry to be registered as the leasehold owner of that site. I will refer to the first to fourth claimants as “Ineos” without distinguishing between them. The fifth to tenth claimants are all individuals. The fifth claimant is the freeholder of Site 1. The sixth to eighth claimants are the freeholders of Site 2. The ninth to tenth claimants are the freeholders of Site 7.

The Defendants

The first five defendants are described as groups of “Persons Unknown” with, in each case, further wording designed to provide a definition of the persons falling within the group. The first defendant is described as:-

“Persons unknown entering or remaining without the consent of the claimant(s) on land and buildings shown shaded red on the plans annexed to the amended claim form.”

The second defendant is described as:-

“Persons unknown interfering with the first and second claimants' rights to pass and repass with or without vehicles, materials and equipment over private access roads on land shown shaded orange on the plans annexed to the amended claim form without the consent of the claimant(s).”

The third defendant is described as:-

“Persons unknown interfering with the right of way enjoyed by the claimant(s) each of its and their agents, servants, contractors, sub-contractors, group companies, licensees, employees, partners, consultants, family members and friends over land shown shaded purple on the plans annexed to the amended claim form.”

The fourth defendant is described as persons unknown pursuing conduct amounting to harassment. The judge declined to make any order against this group which, accordingly, falls out of the picture.

The fifth defendant is described as:-

“Persons unknown combining together to commit the unlawful acts as specified in paragraph 10 of the [relevant] order with the intention set out in paragraph 10 of the [relevant] order.”

The sixth defendant is Mr Boyd. He appeared through counsel at a hearing before the judge on 12 ^th September 2017 and was joined as a defendant. The seventh defendant is Mr Corré. He also appeared through counsel at the hearing on 12 ^th September 2017 and was joined as a defendant. The judge had originally granted ex parte relief on 28 ^th July 2017 against the first five defendants until a return date fixed for 12 ^th September 2017. On that date a new return date with a 3 day estimate was then fixed for 31 ^st October 2017 to enable Mr Boyd and Mr Corré to file evidence and instruct counsel to make submissions on their behalf.

As is to some extent evident from the descriptions of the respective defendants, the potentially unlawful activities which Ineos wishes to restrain are (1) trespass to land; (2) private nuisance; (3) public nuisance; and (4) conspiracy to injure by unlawful means. This last group is included because protesters have in the past targeted companies which form part of the supply chain to the operators who carry on shale gas exploration. The protesters' aim has been to cause those companies to withdraw from supplying the operators with equipment or other items for the supply of which the operators have entered into contracts with such companies.

The judgment

The judge (to whose command of the voluminous documentation before him I would pay tribute) absorbed a considerable body of evidence contained in 28 lever arch files including at least sixteen witness statements and their accompanying exhibits. He said of this evidence, which related largely to the experiences of fracking companies other than Ineos, which is a newcomer to the field:-

“Much of the factual material in the evidence served by the claimants was not contradicted by the defendants, although the defendants did join issue with certain of the comments made or the conclusions drawn by the claimants and some of the detail of the factual material.” (para 18)

In the light of this comment and the limited grounds of appeal for which permission has been granted, we have been spared much of this voluminous documentation.

The judge then commented (para 21):-

“The evidence shows clearly that the protestors object to the whole industry of shale gas exploration and they do not distinguish between some operators and other operators. This indicates to me that what has happened to other operators in the past will happen to Ineos at some point, in the absence of injunctions. Further, the evidence makes it clear that, before the commencement of these proceedings, the protestors were aware of Ineos as an active, or at least an intending, operator in the industry. There is absolutely no reason to think that the protestors will exempt Ineos from their protest activities. Before the commencement of these proceedings, the protestors were also aware of some or all of the sites which are the subject of these proceedings. In addition, the existence of these proceedings has drawn attention to the eight Sites described earlier.”

The judge then proceeded to consider the evidence, expressed himself satisfied that there was a real and imminent threat of unlawful activity if he did not make an interim order pending trial and that a similar order would be made at that trial. He accordingly made the orders requested by the claimants apart from that relating to harassment. The orders were in summary that:-

1) the first defendants were restrained from trespassing at any of the Sites;

2) the second defendants were restrained from interfering with access to Sites 3 and 4, which were accessed by identified private access roads;

3) the third defendants were restrained from interfering with access to public rights of way by road, path or bridleway to Sites 1–4 and 7–8, such interference being defined as (a) blocking the highway (b) slow walking (c) climbing onto vehicles (d) unreasonably preventing access to or egress from the Sites and (e) unreasonably obstructing the highway;

4) the fifth defendants were restrained from combining together to

a) commit an offence under section 241(1) of the Trade Union and Labour Relations (Consultation) Act 1992;

b) commit an offence of criminal damage under section 1 of the Criminal Damage Act 1971 or of theft under section 1 of the Theft Act 1968;

c) obstruct free passage along a public highway, including “slow walking”, blocking the highway, climbing onto vehicles and otherwise obstructing the highway with the intention of...