Emerson Developments & Ors v Avery & Ors

MR JUSTICE FIELD: This is an application for injunctive relief under section 3 of the Protection Against Harassment Act 1997 (“the Act”). The first five claimants are companies constituting a corporate group (“the Emerson Group”), which carries on the business of owning, managing and letting real property. The second claimant owns Blays House in Egham, Surrey, which it leases to Yamanouchi UK Limited (“Yamanouchi”) under a commercial lease for ten years, which commenced on 31^st January 2003. The sixth claimant, Mr Wilson, is a director of the first three claimants, and is a full-time employee of the first claimant. He sues on behalf of himself and all of the other employees of the corporate claimants (“the Emerson employees”).

On 15^th January of this year, His Honour Judge Clark, sitting as a High Court judge, made an order granting leave for Mr Wilson to represent the Emerson employees in these proceedings under CPR 19.6. It was argued by Mr Westgate, who appeared for the first three defendants, that there was an insufficiency of common interest for Mr Wilson to sue in this capacity. I reject that submission. As stated in the Notes in the White Book at para. 19.6.2:

“The phrase ‘the same interest’ in a claim must be interpreted to give effect to the overriding objective. Specifically it should be interpreted in a way that makes the representative proceedings machinery available in cases where its use would save expense and enable the matter to be dealt with expeditiously – per Andrew Smith J in National Bank of Greece SA & Another v Roosevelt M Outhwaite 317 Syndicate at Lloyd’s & Others, when allowing one Lloyd’s syndicate to stand as a representative for a number of 1991 Lloyd’s syndicates.”

In my judgment, the representation by Mr Wilson of the many employees of the Emerson Group is a most convenient and expeditious way of allowing the court the opportunity of protecting the interests of all those employees. Accordingly, I do not propose to disturb the permission granted by His Honour Judge Clark.

Yamanouchi is a customer of a company called Huntingdon Life Sciences (“HLS”), which conducts experiments on live animals in the course of its business. As a consequence, HLS has been the target of a virulent and determined campaign mounted by the fourth defendant, Stop Huntingdon Animal Cruelty (“SHAC”), which began in 1999. The evidence clearly suggests that in the course of this campaign SHAC and the first three defendants, and other individual members of SHAC, were involved in unlawful acts of harassment. It appears that, as a direct consequence of the campaign, HLS’s auditors, insurance brokers, industrial launderers and providers of security services have all ceased to do business with them.

In the late Spring of 2003, SHAC targeted a group of Japanese customers of HLS, including Yamanouchi. The evidence strongly indicates that individual employees of Yamanouchi and of the other Japanese customers were unlawfully harassed, and on October 23^rd 2003 Owen J granted an injunction in very similar terms to the relief sought in this application at the suit of five of HLS’s Japanese customers. Amongst the parties injuncted were the first four defendants in the proceedings before me.

Between 16^th and 23^rd December 2003 19 directors of the Emerson Group received threatening letters sent to their home addresses. The letters stated that they came from the fifth defendant, the Animal Rights Militia, another group of animal rights protesters. The letters were in these terms:

“Your company has been brought to our attention because you rent office space at Blays House, Egham, to the filthy animal-abusing company Yamanouchi. This company is swimming in the blood of innocent animals. We are at war with Yamanouchi because of their business dealings with Huntingdon Life Sciences. We are giving you the chance to save yourselves the trouble of providing extra security for you and your fellow directors and members of staff. You have until the end of the year to sever the tenancy of Yamanouchi at your offices. We have no connections with SHAC or ALF. We are the Animal Rights Militia, and our tactics are ruthless and violent. We will not tolerate your support of Yamanouchi. You have been warned.

Animal Rights Militia.”

There was a report relating to these letters on the website of “Biteback” magazine, an Animal Rights publication. The report reads as follows:

“Received anonymously by activists in the UK:

‘The Animal Rights Militia in the UK has mailed out to 200 HLS workers, HLS supplier company directors, staff at HLS, Japanese customer Yamanouchi, and every Daiichi worker in the UK, threatening violent retribution if they do not sever their links with HLS by the end of the year 2003. In addition, we have written to all the directors of the letting agents for Daiichi UK sales office, Nelson Bakewell, and the landlords, Royal London Asset Management, and also to Yamanouchi’s landlords Emerson, and the letting agents Orbit in the UK, giving them until the end of the year 2003 to evict Daiichi from their UK sales office and Yamanouchi from their new European headquarters in Surrey, or face the consequences of harbouring the animal killers. The animals dying in their cages, killed by the monsters. We will use all means at our disposal to finish off HLS. We mean business. We are deadly serious. We are fighting for victory and fighting for the innocent, and nothing will stop us. We urge activists worldwide to go to war on HLS and finish them off for good. For the animals always, onwards to victory.

ARM.’”

As they were no doubt intended to, the letters sent to the Emerson directors caused a great deal of concern, distress and upset, not only to the recipients but also to their families and to other Emerson employees.

On the night of 3^rd/4^th January 2004, two cars parked on the driveway of a property belonging to an Emerson employee were damaged. Both were liberally painted with paint stripper, and the words “HLS Scum” were written on both of the cars in red paint. Subsequently, the following item appeared on the Backbite website:

“Received anonymously by UK activists:

‘THE ALF CALL ON YAMANOUCHI LANDLORD.

Mr A…is a director of Emerson Developments Holdings Limited, who are the landlords of Yamanouchi’s new European headquarters in the UK. Yamanouchi’s landlords have been told to evict their new tenants and quickly, but the message doesn’t seem to have been received and acted upon. So the ALF decided to pay him a visit and cause some damage to his property. Maybe now the message is starting to sink in. Throw out Yamanouchi. Your time is up.’”

On 13^th January 2004 cars belonging to two further Emerson employees were damaged whilst parked on two separate driveways, and the words “Yamanouchi out” were sprayed on the wall of the house of one of these employees. The next night there were two further incidents. A Mercedes motor car belonging to another Emerson employee was damaged with paint stripper and the word “MUDERER” written on it. Two of its tyres were also let down and the words “ALS” sprayed in red paint on the garage door. In the second incident, the words “Killer” and “PEADO” were sprayed on another Emerson employee’s front gate, and the words “Yamanouchi Your Lease Your Fault” were sprayed on the flagstones. Subsequently the following item appeared on the Backbite website:

“Received anonymously by UK activists:

‘[X] has blood on his hands. As director of Emerson he quite happily lives a glorious lifestyle of fancy cars and big houses. He pays for this by not having any sort of business ethics whatsoever. He is quite happy to house a company such as Yamanouchi in the offices he leases out, and because of this and our global campaign against Yamanouchi he and his companies are a major target of our home attacks. We covered his house in blood-red spray paint, slashed all his tyres on his lovely silver Mercedes, twisted his bonnet logo backwards, and drowned it in paint stripper. This is just the start. If Yamanouchi won’t leave Huntingdon, then Yamanouchi will be forced to leave the country.”

The individual director’s details are then given. At the bottom there appear the letters “ALF”.

Section 3 of the Act provides:

“Civil remedy.

(1)

An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2)

On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

(3)

Where (a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant.

(4)

An application under subsection (3) may be made (a) where the injunction was granted by the High Court, to a judge of that court, and (b) where the injunction was granted by a county Court to a judge or district judge of that or any other county Court.”

I need not read the rest of the section.

Sections 1(1) and (2) and section 7 provide:

“1.

Prohibition of harassment.

(1)

A person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.

(2)

For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

7.

Interpretation of this group of sections.

(1)

This section applies for the interpretation of sections 1 to 5.

(2)

References to harassing a person include alarming the person or causing the person distress.

(3)

A ‘course of conduct’ must involve conduct on at least two occasions.

(4)

‘Conduct’ includes speech.”

There can be no doubt that the conduct inflicted on the Emerson employees that I have described is unlawful harassment under the Act. The evidence suggests that the fifth and sixth defendants are unincorporated associations, consisting of groups of animal rights protesters who engage in violent and unlawful conduct directed against HLS and entities which do business with that company. The fifth and sixth defendants did not appear at the hearing, but there has been substituted service of the proceedings in accordance with an order permitting such service made by His Honour Judge Clark on 15^th January 2004.

On the evidence before the court, the claim that each of the fifth and sixth defendants have unlawfully harassed and threatened in the future to harass the Emerson employees has, at the very least, a good prospect of success at trial. Like Gibbs J – see paragraph 27 of his judgment in Huntingdon Life Sciences v SHAC & Others 20^th June 2003 – I can see no good reason why an injunction cannot be made against an unincorporated association. The issue as far as the fifth and sixth defendants are concerned is, therefore, whether the court’s discretion should be exercised in favour of granting the injunction sought. I shall return to this later in this judgment.

Turning to the other defendants, the first question is whether there are sufficient prospects of establishing a claim made against them at trial of unlawful harassment or the threat of such harassment for the court to go onto consider if it should exercise its discretion in favour of an injunction. Mr Westgate, for the first three defendants, Mr Greg Avery, Mrs Natasha Avery and Ms Heather James, accepted that all of his clients are involved in organising the activities of SHAC, but submitted that there was insufficient evidence that they have harassed Emerson employees, whether directly or by encouraging others, or that there is a real risk that they will harass the employees in the future, for the grant of the injunction sought.

How strong must the case against the defendants be for the court to move on to discretionary considerations such as the balance of convenience? Mr Westgate accepted that in general the test was the Cyanamid test: namely, that there is a serious question to be tried. However, he argued that, to the extent that the injunction sought trenched on his clients’ rights of free speech, assembly and association under ECHR, section 12(3) of the Human Rights Act required that the court must be satisfied that the claimants are likely to establish that publication of the material in question should not be allowed. He referred me to the judgment of Simon Brown LJ in Cream Holdings v Banerjee [2003] EMLR 16. At paragraph 56 Simon Brown LJ said:

“There is an important distinction between the American Cyanamid approach and that now required by s12(3) even if the threshold test created by the latter is, as I would hold, that of a real prospect of success convincingly established. The distinction is that under American Cyanamidthe court is concerned only to find a serious issue to be tried, not to resolve either conflicts of fact or difficult questions of law so as to gauge the merits of the claim. I accordingly have some difficulty with the Vice-Chancellor's views expressed in Imutran - see paragraph 19 above. It seems to me that there will indeed be a number of claims for injunctive relief which now will fail when earlier they would have succeeded: they will fail because the court is required by s12(3) actually to consider their merits (so as to reach a judgment as to the prospects of their eventual success) and cannot grant relief unless satisfied on cogent evidence that the claim does indeed have a real prospect of succeeding at trial notwithstanding the defendant's ex hypothesi conflicting right to freedom of expression. To construe s12(3) as I would propose is by no means to rid it of all force and effect. Nor is the comparative imprecision of the test of real prospect of success fatal to its adoption - see the final paragraph of Hoffmann J's judgment in In re Harris Simons Construction set out in paragraph 40 above.”

In the light of this judgment and the other two judgments in that case, I propose to adopt the test of “real prospect of success” in respect of all the relevant issues in this application.

SHAC’s membership may fluctuate, and there may be sub-groups, but I am satisfied on the evidence that there is a prima facie case that there is an inner core of individuals that organises its activities in the UK, including, in particular, the campaign against HLS and Yamanouchi. The evidence also clearly suggests that this inner core is responsible for SHAC’s website. It is clear from that website that SHAC has started to target the employees of entities that have commercial dealings with Yamanouchi in order to subject Yamanouchi to yet further pressure. Under the heading “News” the SHAC website reports that SHAC members have taken action against three companies that have commercial relationships with Yamanouchi: an entity called State Street (which is alleged to be a shareholder of Yamanouchi); a company called Industrial Supplies (which is alleged to be a supplier of cleaning fluids to Yamanouchi); and a company called Philopharm.

In my opinion there are substantial grounds for declining to accept the first and second defendant’s assertion that this action against these 3 companies was not taken by SHAC but only by a sub-group. I say this because the action is given prominence on SHAC’s website, and is plainly part and parcel of SHAC’s campaign against Yamanouchi. In my judgment, it is a fair inference from the evidence that it has become SHAC’s settled policy to target the employees of any company having significant dealings with Yamanouchi, including the Emerson Group. Does the evidence give rise to a case that has a real prospect of success that the first four defendants are involved in a campaign against the Emerson employees and will commit acts of unlawful harassment against those employees, or encourage others to do so unless restrained by the court? In my opinion it does. It is not contested that the first three defendants are involved in organising SHAC’s campaign against Yamanouchi. On the evidence before me, I conclude that they are important members of SHAC’s inner core and, as such, are at the heart of the campaign against Yamanouchi and the related campaign against the employees of companies dealing with Yamanouchi, including the Emerson Group. In my view, the evidence of the activities of the first three defendants in the past is relevant to whether they and, through them, SHAC pose a real risk of unlawful harassment against Emerson employees.

On 3^rd December 1999, Mr Greg Avery, the first defendant (who I understand is married to the second defendant) was sentenced to 4 months’ imprisonment for threatening behaviour directed at a HLS employee. On 14^th November 2001 all of the first three defendants were sentenced to 12 months’ imprisonment on their plea of guilty to conspiring to incite a public nuisance. When passing sentence, Her Honour Judge Zoe Smith said:

“You have orchestrated a campaign against shareholders and workers in their own homes… The effect was to cause stress and strain… Witnesses have spoken of feeling violated, frightened and ill, and it is clear that you were aware of the effect and the stress they suffered.”

On 18^th July 2003, the third defendant was arrested outside the offices of Yamanouchi in Surrey for allegedly assaulting a Yamanouchi employee, and is awaiting trial for assault in the Crown Court.

On 5^th March 2003 Natasha Avery was reported in the Press Journal of Aberdeen as saying inter alia:

“The message is simple. Anyone dealing with Huntingdon Life Sciences will have to face the consequences of that alliance. If you are involved in animal cruelty, don’t think you can go home at night and get away with it. We will tell your neighbours exactly what you are involved in. We support any form of action against anyone working with Huntingdon Life Sciences.”

She was also reported in Scotland on Sunday, 9^th March 2003 as saying:

“Our message to any company has always been very simple… If you deal with Huntingdon you deal with SHAC, and we will target whoever we want to achieve our aim of closing the place down. No company will stand in our way, be it insurer, bank, accountant, or whatever. And passing laws against us is laughable, because we will always find a way round them. In any case, going to prison is a small price to pay if it means closing HLS down… We support any direct action taken with the specific aim of closing down HLS, as long as there is no harm done to human or animal life.”

Following a successful application by HLS for an injunction, based on allegations of unlawful harassment, Heather James, the third defendant, was reported in the Cambridge News on 14^th April 2003 as saying:

“We take the injunction as a huge compliment to the campaign. It proves we are being extremely effective. We will not stop. We will not go away, and we will not give up. It makes us more determined than ever.”

The first three defendants have also been involved in the publication of the SHAC newsletter. The SHAC newsletter No 23 published in February 2003 contained the following passage:

“The message this spells out is loud and clear. SHAC is everywhere. We have shown yet again that security is no match for the determination of activists hell bent on exposing the truth, but we can and will go to any lengths to bring about the end of HLS and those who deal with them, and that no one is safe from this campaign if they are connected to HLS.”

As I have already related, on 23^rd October 2003 Owen J granted an injunction against inter alios the first four defendants at the suit of five Japanese companies of HLS. Mr Westgate submitted that in deciding to grant the injunction that he did, Owen J was influenced by the pronouncements that had been made in the SHAC newsletter and by Natasha Avery and Heather James, and the fact that there had been no disclaimer of the acts that had been directed at the claimants in that case. The position was now different, said Mr Westgate, because since the injunction granted by Owen J: (1) there had been no pronouncements of the sort that featured in the case before Owen J; (2) there has been a noticeable drop in the actions carried out against the claimants in whose favour Owen J granted the injunction; and (3) the Yamanouchi link on the SHAC website now contains a disclaimer in the following terms:

“We would like to make it clear that SHAC is not inciting or encouraging illegal actions against Yamanouchi or their employees in any shape or form. However, we will not be stifled, and the campaign and its supporters worldwide will exercise their right to protest legitimately and effectively against Yamanouchi and do everything within our power to highlight their disgusting shameful record of animal cruelty and close involvement with HLS.”

In my judgment, these matters relied on by Mr Westgate must be evaluated against the whole of the evidence before the court, including these words that were put onto the SHAC website after the injunction granted by Owen J:

“The Japanese campaign launched in 2003 has had a powerful effect. We know the Japanese customers view the SHAC website on a daily basis, monitoring all the actions taken against their offices worldwide. Five Japanese HLS customers are so worried about the campaign against them that in 2003 they spent hundreds of thousands of pounds and many senior staff’s precious man hours attempting to stifle the campaigns against them by obtaining High Court injunctions. These injunctions have failed miserably and, if anything, have made activists worldwide even more determined to put pressure on these vile animal-murdering companies and highlight their close ties to HLS. HLS’s figures have been slowed down and stopped in their tracks since the start of the Japanese campaign. Don’t forget, these companies are responsible for 20% of HLS’s annual business. That means 20% of the animals brutally tortured and killed within their evil labs every year.”

It is plain that the first three defendants are dedicated and determined animal rights protesters. They have shown themselves willing to break the law in pursuing their cause on a number of occasions. I do not accept that they have undergone a fundamental change of attitude. There is no evidence that they were directly involved in the acts of harassment which have so far been directed at Emerson employees, but, having regard to the whole of the evidence, I think that there are substantial grounds for believing that, unless restrained by the court, they will encourage and assist others to harass unlawfully Emerson employees, notwithstanding the disclaimer on the website. I am accordingly of the view that the Emerson employees’ claim that the first four defendants will incite others unlawfully to harass them unless they are restrained from doing so, has a real prospect of success at trial.

I turn then to consider whether it is just and convenient to grant the relief sought. It follows from what I have said above that there is a real risk that Emerson employees will be unlawfully harassed unless the injunction sought is granted. On the other hand, if the injunction sought is granted, the defendants’ rights of freedom of speech, assembly and association will be curtailed. I must therefore balance the competing interests, and in doing so I must and do keep in mind the defendants’ rights conferred by articles 10 and 11 of ECHR. In my judgment, in weighing these competing interests, the balance comes down decisively in favour of granting a prohibitory injunction.

The order I propose to make is in wide terms and includes the imposition of exclusion zones. In Burris v Azadani[1995] 1 WLR 1373 Sir Thomas Bingham M-R said at 1380F to 1381B:

“Neither statute nor authority in my view precludes the making of an ‘exclusion zone’ order. But that does not mean that such orders should be made at all readily, or without very good reason. There are two interests to be reconciled. One is that of the defendant. His liberty must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff. No restraint should be placed on him which is not judged to be necessary to protect the rights of the plaintiff. But the plaintiff has an interest which the court must be astute to protect. The rule of law requires that those whose rights are infringed should seek the aid of the court, and respect for the legal process can only suffer if those who need protection fail to get it. That, in part at least, is why disobedience to orders of the court has always earned severe punishment. Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.

Ordinarily, the victim will be adequately protected by an injunction which restrains the tort which has been or is likely to be committed, whether trespass to the person or to land, interference with goods, harassment, intimidation or as the case may be. But it may be clear on the facts that if the defendant approaches the vicinity of the plaintiff's home he will succumb to the temptation to enter it, or to abuse or harass the plaintiff; or that he may loiter outside the house, watching and besetting it, in a manner which might be highly stressful and disturbing to a plaintiff. In such a situation the court may properly judge that in the plaintiff's interest - and also, but indirectly, the defendant's - a wider measure of restraint is called for.”

In my judgment, an order in the terms sought is necessary to protect the legitimate interests of the Emerson employees, and in providing that protection it is proportionate and goes no further than is reasonably necessary. I am also of the opinion that the Emerson employees have a real prospect of success at trial of establishing an entitlement to relief in substantially similar terms.

Accordingly, for the reasons I have given, I grant the claimants an injunction in the terms of the draft before the court, save for an amendment to paragraph 7(e), which I will discuss with counsel.