Shell UK v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 23 May 2023 |
| Neutral Citation | [2023] EWHC 1229 (KB) |
| Court | King's Bench Division |
| Docket Number | Case Numbers: QB-2022-001241 QB-2022-001420 |
[2023] EWHC 1229 (KB)
Mrs Justice Hill
Case Numbers: QB-2022-001241
QB-2022-001259
QB-2022-001420
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Myriam Stacey KC and Joel Semakula (instructed by Eversheds Sutherland) for the Claimants
Stephen Simblet KC and Owen Greenhall (instructed by Hodge Jones & Allen) for Jessica Branch
Hearing dates: 25 and 26 April 2023
Approved Judgment
This judgment was handed down remotely at 09.30am on 23 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Claimants in the first two of these claims are Shell UK Limited and Shell International Petroleum Limited. They are, respectively, the freehold owners of (i) the Shell Haven Oil Refinery (“Haven”), a substantial fuel storage and distribution installation; and (ii) the Shell Centre Tower (“Tower”), a large office building. On 5 May 2022 Bennathan J granted these two Claimants interim injunctions against Persons Unknown in respect of the Haven and the Tower.
The Claimant in the third claim is Shell UK Oil Products Limited. It markets and sells fuels to retail customers in England and Wales through a network of Shell-branded petrol stations, and in some cases has an interest in the land where the Shell petrol station is located. On 20 May 2022 Johnson J granted this Claimant an interim injunction against Persons Unknown in respect of Shell petrol stations.
All three injunctions seek to restrain unlawful protests by environmental activists. The Haven and Tower injunctions were due to expire on 2 May 2023, with the petrol stations injunction expiring on 12 May 2023. By application notices dated 30 March 2023 Shell sought extensions of all three injunctions for a maximum of one year and various other orders. The applications were listed together over 25 and 26 April 2023.
During the morning of 24 April 2023, Jessica Branch, a member of one of the key protest groups, Extinction Rebellion (“XR”), served a witness statement and lengthy skeleton argument asking to be heard at the hearing. The Claimants objected to her being heard at the hearing given the lateness of her documentation and for other reasons. It was not possible to resolve the issue of Ms Branch's participation easily at the outset of the hearing. Mr Simblet KC on her behalf indicated that she was keen to avoid incurring further costs by being required to return on a further day. I therefore heard all his submissions on a provisional basis.
The issues that required determination were as follows:
(1): Whether to permit Ms Branch to make submissions, and if so on what basis and to what extent;
(2): Whether to grant the Claimant in the petrol stations claim permission to amend the description of the Persons Unknown Defendants;
(3): Whether to extend the three injunctions for up to a further year in the manner sought by the Claimants;
(4): Whether to grant the Claimants permission to serve any order and ancillary documents by alternative means; and
(5): Whether to grant the Claimant in the petrol stations claim its application for a third party disclosure order against the Commissioner of Police of the Metropolis (“the Commissioner”).
There were only two working days between the end of the hearing and the expiry of the Haven and Tower injunctions; and only three working days until the last date on which Shell could begin complying with the extensive service requirements in respect of any further injunction covering the petrol stations.
In those circumstances the parties raised the possibility of granting a short extension to the injunctions to permit proper consideration of the arguments raised, including certain novel legal points relating to CPR 40.9 advanced by Ms Stacey KC. On 27 April 2023 I indicated to the parties that I considered that this course was appropriate. On 28 April 2023 I made orders with the effect of extending the injunctions for one calendar month, until 25 May 2023. I also made the third party disclosure order sought.
This judgment gives my decisions and reasons on Issues (1)-(4) and my reasons for making the third party disclosure order referred to under Issue (5).
Regrettably, despite the fact that their submissions invited me to uphold the detail of Bennathan J's reasoning on the Haven and Tower claims, and despite the passage of over a year since his judgment, no transcript of his judgment has been obtained by the Claimants. It was therefore necessary to work from a note of his judgment taken by the Claimants' former solicitor. Johnson J's judgment can be found at Shell UK Oil Products v Persons Unknown [2022] EWHC 1215.
The background to the May 2022 injunctions
The background to the obtaining of the three injunctions was summarised in a witness statement from Christopher Prichard-Gamble, the Country Security Manager for the Shell group of companies' UK assets, dated 30 March 2023.
He explained that in early 2022 Shell became aware that XR, a campaign group formed in October 2018, which seeks to effect Government policy on climate change through civil disobedience, had published guidance about its intention to take disruptive action to end the fossil economy. It called upon members of the public to support its aims. Several other groups were associated with XR's stance including Just Stop Oil (“JSO”), Youth Climate Swarm (“YCS”) and Scientists' Rebellion. Matters came to a head in April and May 2022 when various activities were undertaken with what Mr Prichard-Gamble described as the “apparent aim of causing maximum disruption to Shell's lawful activities and thereby generating publicity for the protest movement”.
Haven
Bennathan J was provided with witness statements from Ian Brown, Distribution Operations Manager, dated 13 and 22 April 2022 in respect of the Haven. The protest activities relating to the Haven which Mr Brown described included (i) a six hour incident on 3 April 2022 which saw a group of protestors blocking the main access road to the Haven, boarding tankers and blocking a tanker, requiring police attendance; (ii) protestors scoping and attempting to access the jetty at Haven; and (iii) similar incidents at fuel-related sites geographically proximate to the Haven, causing concern that the Haven could be an imminent target.
In Mr Brown's second witness statement, provided after the grant of the ex parte injunction by Sweeting J on 15 April 2022, he indicated that there had been no further protests targeted at the Haven. However, he said that there had been other protests in the vicinity and indications of future action.
Mr Brown explained that his main concerns related to the fact that the Haven site is used for the storage and distribution of highly flammable hazardous products. If unauthorised access is gained, this could lead to a leak causing a fire or explosion and very significant danger. Unauthorised access to the jetty created an additional risk of damage which could lead to significant release of hydrocarbons into the Thames Estuary. He had concerns over the personal safety of staff/contractors and the protestors themselves (who had, for example, climbed on to moving vehicles) as well as the security of energy supply and Shell's assets.
Tower
Bennathan J was provided with witness statements from Keith Garwood, Asset Protection Manager dated 14 and 22 April 2022 in respect of this claim. The matters he referred to included (i) an occasion on 6 April 2022, when a paint-like substance was thrown, leaving large black marks and splashes on the walls and above one of the staff entrances to the Tower; (ii) a signficant incident on 13 April 2022, when around 500 protesters converged on the Tower, banging drums and displaying banners stating, “Jump Ship” and “Shell=Death” directed at Shell staff, with several glue-ing themselves to the reception area of the Tower and another Shell office nearby; (iii) an incident on 15 April 2022 when around 30 protestors holding banners obstructed the road where the Tower is located; and (iv) an incident on 20 April 2022 when 11 protestors held banners, used a megaphone and ignited smoke flares. He also described protestors having graffitied and stuck stickers on the outside of the Tower with the XR logo and how on several occasions it was necessary to place the Tower in “lockdown”.
Having reviewed the evidence from Mr Brown and Mr Garwood, Bennathan J emphasised that there was “no account of any violence against any person” and that “[t]he protests are loud, no doubt upsetting to some and potentially disruptive, but are peaceful”.
Mr Garwood expressed his concerns that protestors would continue to enter, vandalise or damage the Tower, intimidate staff/visitors and block the entrances and exits to the Tower. The...
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