National Highways Ltd v Ana Heyatawin
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P |
| Judgment Date | 17 November 2021 |
| Neutral Citation | [2021] EWHC 3078 (QB) |
| Docket Number | Case No: QB-2021-003576 QB-2021-003737 |
| Court | Queen's Bench Division |
[2021] EWHC 3078 (QB)
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Mr Justice Chamberlain
Case No: QB-2021-003576
QB-2021-003626
QB-2021-003737
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Myriam Stacey QC, Joel Semakula & Horatio Waller (instructed by DLA Piper UK LLP) for the Claimant
Owen Greenhall (instructed by Hodge Jones & Allen) for the Benjamin Buse; the other defendants appeared in person
Hearing dates: 16 th & 17 th November 2021
Approved Judgment
Introduction
The claimant, National Highways Limited, is the highway authority for the United Kingdom's motorways and major ‘A’ roads, together known as the strategic road network. It is also the licence holder and owner of the land for the strategic road network. The nine defendants all took part in a protest organised by the campaign group Insulate Britain on the morning of 8 October 2021 at the Waltham Cross Interchange roundabout, at Junction 25 on the M25 motorway (the Protest). Insulate Britain aims to induce the government to take certain specific kinds of action to address the climate emergency and fuel poverty.
The claimant seeks an order that, by participating in the Protest, the nine defendants breached an injunction order granted by Lavender J on 21 September 2021 (the M25 Order) and are in contempt of court. The claimant invites us to commit the defendants to prison or to impose such other penalty as we consider appropriate.
This is the judgment of the court to which both members have contributed.
The M25 Order
The background to the making of the M25 Order was a series of protests organised by Insulate Britain that involved the obstruction of highways. The protests began on 13 September 2021 and continued for about nine weeks. The protests involved the creation of human roadblocks whereby people sat down on and glued themselves to the road in live lanes of traffic, wearing high visibility jackets and holding Insulate Britain banners.
On 16 September 2021 Insulate Britain asked police to slow traffic on the M25 to 20 mph as “supporters of the Insulate Britain campaign would be participating in acts of civil disobedience there”. This request was refused by Highways England. On 19 September 2021, the request was repeated as “campaign supporters will be on the M25 network on Monday 20 September from 7am and will continue indefinitely during the week unless the government makes a meaningful statement that they will look at starting the process of decarbonising the homes in Britain”.
The claimant applied for and obtained a number of injunction orders against persons whose identities were unknown at the time of the relevant applications but who were trespassing on the M25 and causing a nuisance there.
The first application concerned the M25 and associated slip roads. On 21 September 2021, Lavender J granted the M25 Order against “persons unknown causing the blocking, endangering, slowing down, obstructing or otherwise preventing the free flow of traffic onto or along the M25 motorway for the purpose of protesting”. The M25 Order prohibited those to whom the injunction was addressed from:
“2.1 Blocking, endangering, slowing down, preventing, or obstructing the free flow of traffic onto or along or off the M25 for the purposes of protesting.
2.2 Causing damage to the surface of or to any apparatus on or around the M25 including but not limited to painting, damaging by fire, or affixing any item or structure thereto.
2.3 Affixing themselves (“locking on”) to any other person or object on the M25.
2.4 Erecting any structure on the M25.
2.5 Tunnelling in the vicinity of the M25.
2.6 Entering onto the M25 unless in a motor vehicle.
2.7 Abandoning any vehicle or item on the M25 with the intention of causing an obstruction.
2.8 Refusing to leave the area of the M25 when asked to do so by a police constable, National Highways Traffic Officer or High Court Enforcement Officer.
2.9 Causing, assisting or encouraging any other person to do any act prohibited by paragraphs 2.1–2.8 above.
2.10 Continuing any act prohibited by paragraphs 2.1–2.9 above.”
The M25 was defined in paragraph 1 as “the London Orbital Motorway including but not limited to the verges, central reservation, on- and off-slip roads, overbridges and underbridges including the Dartford Crossing and Queen Elizabeth II Bridge, and any apparatus related to that motorway”.
The claimant undertook to identify and name defendants and to apply to add them to the M25 Order as soon as reasonably practicable.
The M25 Order had on its front page the usual penal notice. It reads as follows:
“IF YOU THE WITHIN NAMED DEFENDANTS OR ANY OF YOU DISOBEY THIS ORDER OR INSTRUCT OR ENCOURAGE OTHERS TO BREACH THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED”
It also contained a notice that “You are advised to consult a solicitor as soon as possible”.
Further injunction orders, in similar terms, were made in relation to other parts of the strategic road network, by Cavanagh J on 24 September 2021, Holgate J on 2 October 2021 and Linden J on 25 October. This application is not concerned with those orders.
Service of the M25 Order
On 1 October 2021, on the application of the claimant, May J ordered that a number of named defendants be joined to the proceedings. As a result of difficulties in serving the M25 Order, she dispensed with the requirement of personal service. The defendants to this application were among those added as parties to the M25 Order at this stage. Alternative service was permitted by a combination of (i) service by email to Insulate Britain; and (ii) posting a copy through the letterbox of each Defendant, with a notice affixed to the front door if necessary, drawing attention to the fact that the package contained a court order.
There is no dispute that each of the defendants was properly served with the M25 Order. The affidavit of Victoria Davies-Short, for the claimant, establishes that the M25 Order was served on the defendants to this application either personally (in the case of Ben Taylor and Benjamin Buse) or in the case of the other defendants, by the alternative methods permitted by May J's Order on dates between 30 September and 4 October 2021. It was also sent to Insulate Britain by email on 24 September 2021.
Insulate Britain's reaction to the M25 Order
On various dates and in various locations, Insulate Britain protestors publicly burned copies of the M25 Order.
On 28 September 2021, Insulate Britain posted an article on its website in these terms:
“INJUNCTION? WHAT INJUNCTION?
…Yesterday, 52 people blocked the M25, in breach of the terms of an injunction granted to the Highways Agency on 22 nd September.
A second injunction was granted on 24 th September covering the A2, A20 and A2070 trunk roads and M2 and M20 motorway, after an Insulate Britain action outside the Port of Dover last Thursday.
Insulate Britain says actions will continue until the government makes a meaningful commitment to insulate all of Britain's 29 million leaky homes by 2030, which are mong the oldest and most energy inefficient in Europe.”
On 29 September 2021, there was a further post as follows:
“THE SECOND TIME TODAY
…Insulate Britain has returned for a second time today to block the M25 at Swanley (Junction 3).
…Today's actions are in breach of a High Court injunction imposed on 22 nd September, which prohibits 'causing the blocking, endangering, slowing down, preventing, or obstructing the free flow of traffic onto or along or off the M25 for the purposes of protesting.”
On 30 September, Insulate Britain posted that it had blocked the M25 “for the third day this week” and that it was now “raising the tempo”. It added that its actions were in breach of a High Court injunction.
Alleged breaches of the M25 Order by the defendants
On the morning of 8 October 2021, at 8.35am, police were alerted by construction workers that a large group of protestors were running on to the road at the Waltham Cross Interchange roundabout at Junction 25 on the M25. When they arrived they found a group of 15 to 20 protestors sitting or lying in the road wearing high visibility vests, some of whom were holding Insulate Britain banners. Both lanes of the carriageway leading from the M25 slip road to the roundabout were blocked. By the time the police arrived, there was a long line of traffic leading to the protestors' location.
Part of the evidence relied on by the claimant in support of this application is bodycam footage from the police officers who attended. The footage shows a somewhat chaotic scene with the defendants very close to traffic, and in some instances moving traffic, and the police attempting to restrain them from continuing with their protest and re-entering the road. The police cleared one lane relatively quickly, but not because the defendants complied willingly with efforts to remove them. Roman Paluch-Machnik tried to move into the oncoming traffic after being removed. Emma Smart and Ben Buse (who had glued themselves together) ran back into the road from the verge to which they had been removed. James Thomas was removed to the verge and then had to be removed and/or restrained from re-entering the road on two further occasions. The second lane was blocked until 9.55am because two of the defendants, Ben Taylor and Louis McKechnie, had managed to glue themselves to the road.
In paragraph 22 of the Statement of Case supporting this committal application, the claimant says...
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