National Highways Ltd v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | Sir Julian Flaux C |
| Judgment Date | 23 February 2023 |
| Neutral Citation | [2023] EWCA Civ 182 |
| Docket Number | Case No: CA-2022-001066 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 182
Dame Victoria Sharp PRESIDENT OF THE KING'S BENCH DIVISION
Sir Julian Flaux CHANCELLOR OF THE HIGH COURT
and
Lord Justice Lewison
Case No: CA-2022-001066
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BENNATHAN J
Royal Courts of Justice
Strand, London, WC2A 2LL
Myriam Stacey KC, Admas Habteslasie and Michael Fry (instructed by DLA Piper UK LLP) for the Appellant
Mr David Crawford and Mr Matthew Tulley, two of the named Respondents, addressed the Court on behalf of the 109 named Respondents
Hearing dates: 16 February 2023
Approved Judgment
Introduction
This is the judgment of the Court. The appellant, National Highways Limited (“NHL”) appeals, with the permission of Whipple LJ, against various paragraphs of the Orders of Bennathan J dated 9 and 12 May 2022. By those Orders, the judge dismissed in part the application of NHL for summary judgment (“the SJ Application”) by which NHL sought a final anticipatory or quia timet injunction (i) against 133 named defendants who were Insulate Britain (“IB”) protesters who had been arrested by the police at various demonstrations on motorways and other roads and (ii) against persons unknown. The judge granted a final injunction against 24 of the 133 named defendants, consisting of those who had been found to be in contempt of Court but otherwise refused to grant a final injunction, although he did grant an anticipatory injunction on an interim basis against the remaining 109 named defendants and against persons unknown on essentially the same terms as the final injunction.
Factual and procedural background
NHL is the highways authority for the Strategic Road Network (“SRN”) pursuant to section 1A of the Highways Act 1980 and has the physical extent of the highway vested in it. NHL commenced three sets of proceedings in response to a series of protests organised by IB which began on 13 September 2021 in and around London and south-east England. The protests involved protesters blocking highways forming part of the SRN, normally by sitting down on the road surface or gluing themselves to the road surface. The protests created a serious risk of danger and caused serious disruption to the public using the SRN and more generally.
NHL made urgent applications for interim injunctions to restrain the conduct of the protesters:
(1) In QB-2021-003576, Lavender J granted an interim injunction on 21 September 2021 in relation to the M25;
(2) In QB-2021-3626, Cavanagh J granted an interim injunction on 24 September 2021 in relation to parts of the SRN in Kent;
(3) In QB-2021-3737, Holgate J granted an interim injunction on 2 October 2021 in relation to M25 “feeder” roads.
(4) On the return date of 12 October 2021, the three injunctions were continued until trial or further order and the claims were ordered to proceed together.
Each of the injunctions was originally made only against persons unknown, but contained an express obligation on NHL to identify and add named defendants. To enable that to occur a number of disclosure orders were made, providing for Chief Constables of the relevant police forces to disclose to NHL the identity of those arrested during the course of the protests, together with material relating to possible breaches of the injunctions. On 1 October 2021, May J ordered that 113 people arrested for participation in the protests be added as named defendants. NHL continued to add further named defendants as protests continued. In October and November 2021 the claims were served on named defendants. No named defendants have been added since November 2021.
On 22 October 2021, NHL filed Consolidated Particulars of Claim in the three actions. The case was pleaded on the basis that the conduct of the protesters constituted (1) trespass; (2) private nuisance; and/or (3) public nuisance. The pleading described the protests that had already taken place and contended that they exceeded the rights of the public to use the highway and that the obstruction and disruption caused by the protests was a trespass on the SRN which endangered the life, health, property or comfort of the public and/or obstructed the public in the exercise of their rights. [18] and [19] of the pleading set out the basis for the anticipatory injunction sought: “there is a real and imminent risk of trespass and nuisance continuing to be committed across the SRN including to the Roads” and referred to open expressions of intention by the defendants to continue to cause obstruction to the SRN, unless restrained. Although a claim for damages was made in the pleading, that has not been pursued by NHL.
On the same day as the pleading was filed, NHL made its first contempt application in relation to breaches of the M25 Injunction, given that notwithstanding the injunction, blocking and disruption of the M25 by IB protesters was continuing. This was determined on 17 November 2021. Two further contempt applications in relation to breaches of the M25 injunction were made on 19 November 2021 and 17 December 2021, determined on 15 December 2021 and 2 February 2022 respectively. 24 of the 133 defendants (to whom we will refer as “the contemnor defendants”) were found to have been in contempt of court.
On 23 November 2021, defences were served on behalf of three of the named defendants. Mr Horton and Mr Sabitsky stated in identical terms that they had never trespassed on the SRN and had no intention of doing so. Proceedings against them were discontinued. Mr Tulley admitted being involved in protests on the M25 on three days in September 2021. He asserted that he was not involved in the IB protests covered by the injunctions but admitted being involved in IB protests not covered by the injunctions. He has remained a defendant. No other defences have been served and up to and including the hearing before the judge there was no engagement with the proceedings and no statements that the other defendants were not intending to continue the protests.
On 24 March 2022, NHL issued the SJ Application in the interests of finality. Although it would have been entitled to apply for default judgment against all the remaining named defendants other than Mr Tulley, it was explained in the witness statement in support of the SJ Application of Ms Laura Higson, an associate at DLA Piper UK LLP, NHL's solicitors, that this procedure was adopted to afford the defendants the opportunity to engage with the merits of the claim. The SJ Application was served on the named defendants, but as already indicated, they chose not to serve defences or otherwise engage with the merits of the claim.
Ms Higson's witness statement sets out details of the protests which had already occurred and the risk of future protests including quoting an IB press release of 7 February 2022 on its website which stated:
“We will continue our campaign of civil resistance because we only have the next two to three years to sort it out and prevent us completely failing our children and hitting climate tipping points we cannot control.
Now we must accept that we have lost another year, so our next campaign of civil resistance against the betrayal of this country must be even more ambitious. More of us must take a stand. More of you need to join us. We don't get to be bystanders. We either act against evil or we participate in it.
We haven't gone away. We're just getting started.”
Ms Myriam Stacey KC on behalf of NHL explained that it was because of this two to three year time frame that the draft order served with the SJ Application sought a final injunction until a date in April 2025.
Ms Higson also quoted another IB press release dated 15 February 2022 stating that it had joined Just Stop Oil. She referred to a presentation by Roger Hallam, a leading figure within both organisations, who said: “Thousands of people will be going onto the streets and onto the motorways to the oil refineries and they will be sitting down.”
She referred to the disclosure orders and to the fact that each of the named defendants had been arrested on suspicion of conduct which constituted a trespass and/or nuisance on the roads subject to the interim injunctions. In 28 sub-paragraphs of [51] of the statement she set out details of all the arrests between 13 September and 2 November 2021. At [60] she summarised the evidence before the Court and at [61] said that on the basis of that evidence, there was a real and imminent risk of further unlawful acts of trespass and nuisance on the parts of the SRN covered by the interim injunctions and that risk was unlikely to abate in the near or medium future. The Court was accordingly invited to accede to the SJ Application.
The SJ Application was heard by the judge on 4 and 5 May 2022. The judgment below
Having set out the background to the claims, the judge referred to the SJ Application at [4]. He evidently considered summary judgment a distinct process from the grant of a final injunction, since at [4] of the judgment he says that the application for a final injunction is being made “in addition to” the application for summary judgment. The judge then goes on to deal separately with summary judgment at [24] to [36] then with the injunction at [37] to [49] of the judgment.
It is also evident both from what the judge said in the course of argument and in the summary judgment section of the judgment that he considered that summary judgment could not be granted unless NHL could establish tortious liability of the named defendants in respect of the protests which had taken place in the past. At [25] the judge said that an injunction was a remedy, not a cause of action, then at [26] that...
To continue reading
Request your trial
-
Transport for London v Persons Unknown
...the judgments of Bennathan J and the Court of Appeal in the case which I refer to as NHL v IB, reported at [2022] EWHC 1105 (QB) and [2023] EWCA Civ 182 respectively, and the judgments of Freedman J and Cavanagh J in the case which I refer to as TfL v JSO, reported at [2022] EWHC 3102 (KB......
-
The National Highways Ltd v Persons Unknown
...1105 (QB). The Claimant successfully part of the order. The citation for the judgment of the Court of Appeal is NHL v Persons Unknown [2023] EWCA Civ 182. 3 The Claimants are represented by Ms Stacey KC and Mr Fry of 4 The following named Defendants made oral and/or representations prior t......
-
Transport for London v Persons Unknown
... [2018] EWHC 2456 (Ch), [2019] 4 WLR 2 and of the decision of the Court of Appeal in National Highways Ltd v Persons Unknown & others [2023] EWCA Civ 182 is that such an injunction will only be granted where there is a strong probability that unless restrained the defendant will act in br......
-
Property Newsletter: March 2023 (Video)
...failed to engage in proceedings (National Highways Ltd v Persons Unknown) In National Highways Ltd v Persons unknown and others [2023] EWCA Civ 182, the Court of Appeal overturned a High Court judge's refusal to grant summary judgment in claims for final injunctions in circumstances where t......