National Highways Ltd v Benjamin Buse
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans |
| Judgment Date | 15 December 2021 |
| Neutral Citation | [2021] EWHC 3404 (QB) |
| Docket Number | Case No: QB-2021-003576, QB-2021-3626 and QB-2021-3737 |
| Court | Queen's Bench Division |
[2021] EWHC 3404 (QB)
Lord Justice Dingemans
Vice-President of the Queen's Bench Division
and
Mr Justice Johnson
Case No: QB-2021-003576, QB-2021-3626 and QB-2021-3737
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Myriam Stacey QC and Joel Semakula (instructed by DLA Piper UK LLP) for the Claimant
Owen Greenhall (instructed by Hodge Jones & Allen) for the First Defendant;
Catherine Oborne for the Third Defendant;
The other defendants appeared in person
Hearing dates: 14 and 15 December 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is the judgment of the Court to which we have both contributed. The claimant, National Highways Limited, seeks an order determining that the defendants are in contempt of court and providing for their committal or other sanction. It does so because, on 27 October 2021, each of the defendants walked onto the carriageway of the A206 at its junction with the A282/M25 and obstructed the flow of traffic. The second defendant did the same thing at junction 25 of the M25 on 8 October 2021. This is said to be in breach of an injunction granted by Lavender J on 21 September 2021.
The defendants have each accepted that they were validly served with the order of Lavender J, that they breached that order in the terms alleged by the claimant, and that they are therefore in contempt of court. The remaining issue for the court is the sanction that should be imposed on each of the defendants. We record, in that respect, that an application for costs against each defendant has been made which is relevant to overall sanction, but we will deal with that after determining the sentence to be imposed on each defendant.
In National Highways Limited v Ana Heyatawin and others [2021] EWHC 3078 (QB) the Divisional Court (Dame Victoria Sharp P and Chamberlain J) dealt with nine defendants who had, on 8 October 2021, breached the order made by Lavender J. The breaches of the injunction were found proved and the defendants were sentenced to terms of imprisonment of between 3 months and 6 months. One of the defendants in Heyatawin and others was the first defendant in these proceedings, Benjamin Buse. He was sentenced to four months imprisonment, and therefore is still serving his sentence of imprisonment at the time of the hearing before us.
Some procedural issues
Although an order was made for the production of the first defendant from prison, at the beginning of the hearing on 14 December 2021 he had not been produced from prison. Efforts were made to obtain his delivery to Court, but he was not produced until 3.30 pm on 14 December 2021. Mr Greenhall had not had an opportunity to speak to the first defendant and so the proceedings relating to the first defendant were adjourned to and took place today on 15 December 2021.
At the commencement of the hearing on 15 December 2021 Mr Greenhall applied to make an application on behalf of Mr Buse to purge his contempt of Court, and he asked to make it to this court. He pointed out that prison had been a very sobering experience for the first defendant, and the first defendant was in his cell for 23 and a half hours a day because of the impact of the COVID-19 pandemic and the Omicron variant, and we were alerted to medical issues for a close family member. The first defendant was now prepared to apologise for his breach of the order, and undertook not to breach the order again.
CPR Part 81.10(2) provides that an application to discharge a committal order “shall be made by an application notice under Part 23 in the contempt proceedings”. We were referred to CJ v Flintshire Borough Council [2010] EWCA Civ 393; [2010] 2 FLR 1224at paragraph 21, and Swindon Borough Council v Webb [2016] EWCA Civ 15; [2016] 1 WLR 3301 at paragraph 45.
In circumstances where there have been difficulties in arranging legal visits to the first defendant we might have been prepared to accept an undertaking to file an application notice if we were to deal with the application. However we do not consider that we should deal with this application. This is because we consider that issues of purging this contempt should be heard by the original court which imposed the sentence, or at least some part of the constitution of the court which imposed the sentence.
The third defendant, Diana Warner, was not present at the start of the hearing, although Ms Oborne was present to represent the third defendant. It did not appear that there was any good reason for the third defendant's absence and Ms Higson, a solicitor for the claimant, produced a tweet showing videos of the third defendant saying that she “had decided to defy the court summons by not appearing in court this morning. She has instead taken part in action in Yorkshire to disrupt a train headed for the Drax power station”.
In these circumstances the court issued a warrant for the arrest of the third defendant requiring her to be brought before court on 15 December 2021. In the early part of the afternoon on 14 December 2021 the third defendant attended court. Ms Oborne was able to take instructions and the third defendant came into court. In circumstances where the third defendant was now at court we discharged the warrant for the third defendant's arrest. It meant however that we had to hear the third defendant's case in the morning of 15 December 2021, and we record that she attended court promptly, when we had managed to hear the cases for and against the second and fourth to ninth defendants on 14 December 2021.
The material facts
There is no dispute about the material facts. National Highways Limited is the licence holder, highways authority and owner of the land that comprises the M25 motorway and the A206 at the junction with the M25.
Insulate Britain is a protest group that has organised activities designed to disrupt daily life and thereby draw attention to its demand that the government “create hundreds of thousands of jobs, lower our emissions, and save lives.” The protests are intended to highlight the climate emergency, require the Government to insulate all houses, and end fuel poverty. We were told in the oral submissions on sanction made by the Defendants in person, that Insulate Britain had been formed before the COP 26 climate change conference to ensure that the Government took proper action to prevent climate change. It was apparent from all of the evidence before us that all of the defendants had become convinced of the need to take urgent action to stop climate change and they considered that the Government was taking inadequate steps to address the climate change emergency.
Insulate Britain organised protests on 13 September 2021, 15 September 2021, 17 September 2021, 20 September 2021 and 21 September 2021. Each of these protests involved disruption and obstruction to the M25. This included some protestors sitting down on the carriageway, gluing themselves to the road surface, holding banners across the road, preventing vehicles from passing, and causing traffic jams and tailbacks with substantial delays.
On 21 September 2021, Lavender J granted an order against defendants specified as “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 order contained, at the start, a “penal notice” in bold capitalised text, stating that if a defendant breached the order then they may be held to be in contempt of court and may be imprisoned, fined or have their assets seized. The order states that the defendants specified in the order are forbidden 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.
…
2.3 Affixing themselves (“locking on”) to any other person or object on the M25.
…
2.6 Entering onto the M25 unless in a motor vehicle.
…
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.”
Each of the defendants to the present application has been joined to the proceedings and has been served with the order, together with the claim form and a covering letter. This service took place between 29 September and 4 October 2021. Each of the defendants accepts that they were validly served with the order. The order made it clear that any defendant could apply to vary or discharge the order. None of the defendants sought to do so.
The reaction to the order from Insulate Britain was described by Dame Victoria Sharp P in Heyatawin and others at paragraphs 15 to 18:
“15. On various dates and in various locations, Insulate Britain protestors publicly burned copies of the M25 Order.
16. 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 22nd September.
A second injunction was granted on 24th September covering the A2, A20 and A2070 trunk roads and M2 and M20 motorway, after an Insulate Britain action outside the Port...
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