The National Highways Ltd v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWHC 1073 (KB) |
| Docket Number | Case No: QB-2021-003576, 3626 & 3737 |
| Court | King's Bench Division |
[2023] EWHC 1073 (KB)
Mr Justice Cotter
Case No: QB-2021-003576, 3626 & 3737
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Myriam Stacey KC & Michael Fry (instructed by DLA Piper LLB) for the Claimant
A number of Defendants appeared in person and/or filed written submissions
Hearing dates: 24 April 2023
Approved Judgment
This judgment was handed down at 10.30am on 5 th May
| Index | Paragraph No. |
| Introduction | 1–6 |
| Background Facts | 7–59 |
| Issues | 60 |
| Evidence | 61–61 |
| Should the injunction be extended? | 63–76 |
| Submissions sent in before the hearing | 77–82 |
| Submissions made at the hearing | 83–86 |
| Submissions received after the hearing | 87–103 |
| Analysis | 104–123 |
| Amendments to the Schedule | 124–125 |
| Alternative Service | 126–140 |
| Costs | 141–155 |
| Costs of the review hearing | 156–159 |
| Police duty to disclose information | 160–163 |
| Conclusion | 164–165 |
| Annex A | |
| Annex B |
Introduction
This is the Judgment on an application issued by the Claimant, National Highways Limited (“NHL”) for the extension and variation of an injunctive order made on 9 th May 2022 by Mr Justice Bennathan as amended by the Court of Appeal by the order of 14 th March 2023.
The background facts and Bennathan J's reasoning are set out with his Judgment; NHL v Persons Unknown [2022] EWHC 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.
The Claimants are represented by Ms Stacey KC and Mr Fry of counsel.
The following named Defendants made oral and/or representations prior to or at the hearing.
(a) David Crawford (written and oral submissions at the hearing)
(b) Mair Bain (written and oral submissions at the hearing)
(c) Virginia Morris (written and oral submissions at the hearing)
(d) Matthew Tulley (oral submissions at the hearing)
(e) Ruth Jarman (oral submissions at the hearing)
(f) Jerrard Latimer (oral submissions at the hearing)
(g) Giovanna Lewis (oral submissions at the hearing)
(h) Julia Mercer (written submissions)
At the hearing I stressed the importance of engagement with the Court and indicated that I would consider any further written submissions concerning the giving of an undertaking to the Court (I shall return to both issues in due course).
Following the hearing I received written submissions from a number of Defendants as set out in detail below.
The background facts
NHL is the licence holder, highways authority and owner of the land that comprises the strategic road network which includes the M25 motorway, certain Kent strategic roads and the feeder roads into the M25.
Insulate Britain (“IB”) is an environmental activist group, founded by members of the environmental movement known as Extinction Rebellion. The aim of IB is to persuade the Government to improve the insulation of all social housing in the UK by 2025 and retrofit all homes with improved insulation by 2030. Members/supporters of IB believe that improved insulation of homes would likely reduce the use of fuel, such as natural gases and oil, mitigate the effects of fuel poverty, create jobs and help address the climate change crisis and save lives. Due to frustration with what they perceived to be Government's failure to address their concerns/demands members/supports of IB organised activities designed to disrupt daily life and thereby draw attention to these issues.
The M25 became a focus for demonstration. IB organised protests on 13 th, 15 th, 17 th, 20 th and 21 st 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. The demonstrations spread to other highways forming part of the strategic road network.
NHL made urgent applications for interim injunctions to restrain the conduct of the protesters arguing that the protests created a serious risk of danger and caused serious disruption to the public using the strategic road network and more generally. Most directly relevant to the application before me, three sets of proceedings were commenced and orders granted as follows:
(a) In QB-2021-003576, Mr Justice Lavender granted an interim injunction (an interim injunction is intended to prevent injustice before a trial can take place) on 21 st September 2021 in relation to the M25 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”.
(b) In QB-2021–3626, Mr Justice Cavanagh granted an interim injunction on 24 th September 2021 in relation to parts of the strategic road network in Kent;
(c) In QB-2021–3737, Mr Justice Holgate granted an interim injunction on 2 nd October 2021 in relation to M25 “feeder” roads.
The reaction to the order from Insulate Britain was described by Dame Victoria Sharp, President of The Kings Bench Division in Heyatawin and others [2021] EWHC 3078 (QB) 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 2012 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.
..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 among the oldest and most energy inefficient in Europe.”
17. On 29 September 2021there 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 22nd 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.’”
18. 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.”
The leaders/co-ordinators of IB made it publicly known that they did not intend to be prevented from taking what they considered necessary action by the orders of the Court. In so doing they notified anyone who read their statements (or associated media/social media coverage) of the existence of the prohibition against demonstrations of the type which had taken place.
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, Mrs Justice May 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.
A further protest took place on the M25 on the 8 th October 2012. This protest was the subject of the contempt applications in Heyatawin and others.
When the hearings in relation to the interim injunctions next came before the Court (what is referred to as “a return date”) on 12 th October 2021, the three injunctions were continued until trial or further order and the claims were ordered to proceed together.
There was a further protest on 27 th October 2021. The actions of the protestors interfered with traffic entering the M25 anti-clockwise from the A206, and with traffic exiting the M25 clockwise onto the A206. This caused substantial traffic delays.
In October and November 2021 the claims were served on named defendants as identified through the information disclosed to NHL by the police as required by the order of the Court.
On 22 nd October 2021, NHL filed a single Particulars of Claim in the three actions. The case was pleaded on the basis that the conduct of the protesters constituted
a. trespass;
b. private nuisance; and/or
c. 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. Paragraphs 18 and 19 of the pleading set out the basis for an anticipatory injunction. This is an injunction sought before a party's rights have been infringed on the basis of a fear that a wrong will be committed if an order is not made 1. An anticipatory injunction was sought because
“there is a real and imminent risk of trespass and nuisance continuing to be committed across the SRN including to the Roads”
and references were made to open expressions of intention by IB/persons unknown/named 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...
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Transport for London v Persons Unknown
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