MBR Acres Ltd v Gillian Frances McGivern
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 02 August 2022 |
| Neutral Citation | [2022] EWHC 2072 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2021-003094 |
[2022] EWHC 2072 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2021-003094
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Caroline Bolton and Natalie Pratt (instructed by Mills & Reeve LLP) for the Applicants
Ashley Underwood QC and Adam Tear (instructed by Scott-Moncrieff & Associates Ltd) for the Respondent
Hearing dates: 21–22 July 2022
Approved Judgment
This is the judgment following a contempt application made against Gillian McGivern (“Ms McGivern”) for alleged breaches of an injunction order that was originally granted on 10 November 2021 (“the Injunction”). The judgment handed down on that date ( [2021] EWHC 2996 (QB)) explains the terms in which the Injunction was granted (“the Injunction Judgment”). It also sets out the background and circumstances in which the Injunction was sought and imposed.
The hearing took place over two days. At the end of the hearing, I dismissed the contempt application and indicated that I would give my reasons in writing at a later date. This judgment explains my decision.
The issues raised in the Contempt Application, particularly service of the Injunction on Ms McGivern, require that I set out some of the history of the litigation.
A: The parties to the Contempt Application
The Claimants are described in the Injunction Judgment (see [3]–[6]).
Ms McGivern was called to the Bar in 1994. She transferred to become a solicitor and has spent a career since working primarily in criminal litigation. She has obtained higher rights of audience in the criminal courts and regularly practises there. Ms McGivern undertakes police station work as part of the duty solicitor scheme.
As a result of the contempt application that was made against her, Ms McGivern self-reported to the Solicitors Regulation Authority (“SRA”) and she ceased working for her firm. Although the SRA subsequently confirmed that she could continue working as a solicitor, Ms McGivern found the stress of facing the contempt application, and the possible consequences for her, too much to be able to continue work as a solicitor. She therefore remained absent from her firm, pending determination of the contempt application. A solicitor who is found to be guilty of contempt of court is likely to find that, in addition to any penalty imposed by the Court, s/he is likely to face further regulatory sanction that could include being struck off. For Ms McGivern the personal and professional stakes could not have been higher.
B: The Injunction in the underlying proceedings and orders for alternative service
The claim brought by the Claimants was commenced on 13 August 2021. It sought interim and final remedies against those protesting about the activities of, primarily, the First Claimant at its site Wyton, Huntingdon, Cambridgeshire (“the Wyton Site”). As originally framed, the claim was made against two representative Defendants (the First and Second Defendants), seven named Defendants (the Third to Ninth Defendants) and the Tenth Defendant, “Persons Unknown” then identified as those:
“… who are protesting within the area marked in blue on the Plan attached at Annex 1 of the Claim Form and/or engaging in unlawful activities against the Claimants and/or trespassing on the First Claimant's Land at [the Wyton Site] and/or posting on social media images and details of the officers and employees of MBR Acres Limited, and the officers and employees of third party suppliers and service providers to MBR Acres Limited”
By an Application Notice filed on 11 August 2021, the Claimants sought, without notice, an order for alternative service of the Claim Form on the Tenth Defendant “Persons Unknown”. On 12 August 2021, Ellenbogen J granted an order in the following terms:
“Pursuant to CPR Part 6.14, 6.15, 6.26 and 6.27 the Claimants have permission to serve the Tenth Defendant, Persons Unknown, by the following alternative forms of service:
3.1 Affixing copies (as opposed to originals) of the Claim Form, the Injunction Application Notice, draft Injunction Order, and this Order permitting alternative service, in a transparent envelope on the gates of the First and Third Claimants' Land and in a prominent position on the grass verge at the front of First and Third Claimants' Land.
3.2 The documents shall be accompanied by a cover letter in the form set out in Annexure 2, explaining to Persons Unknown that they can access copies of:
3.2.1 The Response Pack;
3.2.2 Evidence in support of the Alternative Service and Injunction Applications; and
3.2.3 The skeleton argument and note of the hearing of the Alternative Service Application, at the dedicated share file website at [Dropbox link given]:
3.3 The deemed date of service for the documents referred to in paragraphs 3 to 3.2.3 above shall be two working days after service is completed in accordance with paragraphs 3 to 3.2.3 above.”
In granting that alternative service order as against the Tenth Defendant Persons Unknown, the Judge would have been satisfied, on the evidence, that the proposed method of alternative service — detailed in Paragraphs 3.1 to 3.2 — could “reasonably be expected to bring the proceedings to the attention of the defendant”: Cameron v Liverpool Victoria Insurance Co Ltd [2019] 1 WLR 1471 [21]. As the “Persons Unknowns” were, at that stage, defined by reference to those protesting within a marked area, the alternative service method proposed was likely to be effective in bringing the proceedings to the attention of the protesters in that area.
The alternative service order, however, did not comply with the mandatory requirement, under CPR 6.15(4)(c), that the order must specify the period for (i) filing an acknowledgment of service; (ii) filing an admission; or (iii) filing a defence. I will return below to the potential implications of this (see [74] below).
An interim injunction was granted on 20 August 2021 against all the Defendants (see Injunction Judgment [34]–[37]). The terms of the injunction were reconsidered at a hearing on 4 October 2021 and varied, following the handing down of the Injunction Judgment. The claim brought against the representative First and Second Defendants was stayed (Injunction Judgment: [52]–[67]). The original Tenth Defendant “Persons Unknown” was replaced by three new categories of “Persons Unknown” with the addition of the Fifteenth to Seventeenth Defendants, who were joined as Defendants to the proceedings and defined as follows:
“ (15) PERSON(S) UNKNOWN
(who are entering or remaining without the consent of the first claimant on the land and in buildings outlined in red on the plan at Annex 1 of the Amended Claim Form, that land known [the Wyton Site])
(16) PERSON(S) UNKNOWN
(who are interfering with the rights of way enjoyed by the First Claimant over the access road on the land shown in purple at Annex 3 of the Amended Claim Form and enjoyed by the Second Claimant as an implied or express licensee of the First Claimant)
(17) PERSON(S) UNKNOWN
(who are obstructing vehicles of the Second Claimant entering or exiting the access road shown in purple Annex 3 of the Amended Claim Form Order and/or entering the First Claimant's land at [the Wyton Site]).”
Four further named individuals were added as Defendants to the Claim (the Eleventh to Fourteenth Defendants) on 10 November 2021.
The material parts of the Injunction, granted on 10 November 2021, were as follows. Paragraph 1 of the Injunction provided:
“1. The Third to Ninth, Eleventh to Fourteenth, and Fifteenth to Seventeenth Defendants MUST NOT:
(1) enter into or remain upon the following land:
the First Claimant's premises known as MBR Acres Limited, Wyton, Huntingdon PE28 2DT as set out in Annex 1 (the ‘Wyton Site’); …
(2) enter into or remain upon the area marked with black hatching on the plans at Annex 1 … (the ‘Exclusion Zone’), save where … accessing the highway whilst in a vehicle, for the purpose of passing along the highway only and without stopping in the Exclusion Zone, save for when stopped by traffic congestion, or any traffic management arranged by or on behalf of the Highways Authority, or to prevent a collision, or at the direction of a Police Officer.
(3) park any vehicle, or place or leave any other item (including, but not limited to, banners) anywhere in the Exclusion Zone;
(4) approach and/or obstruct the path of any vehicle directly entering or exiting the Exclusion Zone (save that for the avoidance of doubt it will not be a breach of this Injunction Order where any obstruction occurs as a result of an emergency).”
Definitions, set out in Schedule A to the Injunction, provided:
“The ‘Exclusion Zone’ is… for the purpose of the Wyton site, the area with black hatching at Annex 1 of this Order measuring 20 meters in length either side of the midpoint of the gate to the entrance of the Wyton site and extending out to the midpoint of the carriageway…”
Annex 1 to the Injunction was a plan of the Wyton Site marked with the Exclusion Zone around the entrance to the First Claimant's premises. Annex 1 included boxes containing annotations. One of those provided:
“Exclusion zone in black crosshatched area is 20 metres either side of the centre of the Gate to...
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