Harrods Ltd & Ors v McNally & Ors

The claimants are respectively the operating company of Harrods Department Store, its property owner and its head of uniform security. The defendants are campaigners against the fur trade and the sale of fur products by Harrods. The first defendant is a committed animal rights campaigner, plays a major role in organising demonstrations, is the main organiser of the campaign and has attended many protests at Harrods. In earlier proceedings, the court has determined that the second and third defendants are properly joined as parties and for enforcement purposes a protestor must previously have been served with the order of the court.

Throughout these and earlier proceedings, the first defendant has acted in person. He has done so with formality, dignity and respect. At all times, he has filed documents as and when requested so to do. During the course of this hearing, which took place during one afternoon and one morning, he has formulated intelligent and intelligible submissions on behalf of all defendants. He speaks for the campaign but he has no authority to bind the other defendants. That has been a common feature of earlier proceedings, which have resulted in undertakings being given by the first defendant and injunctions being made against the other defendants.

The first protest by the defendants was in the autumn of 2005. The claimants commenced proceedings in December 2005 and the first injunction against any defendant was on 21 December 2005. The substantive order currently in force is that originally made by Cranston J on 5 June 2008 as amended and extended by Tugendhat J on 24 October 2008, His Honour Judge Mitchell on 25 February 2011, and His Honour Judge Robinson on 25 March 2011 and 28 March 2013.

The applications by the claimants dated 31 January 2013 and 7 May 2013 are for extensions to the existing amended order restricting the activities of the defendants in the vicinity of Harrods.

The object of the defendants is to attract the attention of employees and customers of Harrods, to persuade them to subscribe to the views of the Coalition, to encourage there to be fewer sales of fur goods in Harrods and ultimately to cause Harrods to stop selling fur goods.

Harrods are lawfully entitled to sell and customers are lawfully entitled to buy fur goods. Harrods have property rights and are entitled to the protection of the law from trespass, nuisance and harassment. Customers and employees have Article 8 rights in relation to respect for their private and family lives. The defendants are entitled to express their views and peacefully assemble pursuant to their Article 10 and Article 11 rights subject to the balancing of such rights against the rights of others.

The current order was made in acknowledgement of these general principles. The amended orders have regulated the order as to when, where and in what manner the defendants have been able to make their protests.

The first defendant does not contend, nor could he realistically have contended this long after the event, that the order as amended and extended was an inappropriate or unlawful order to have been made. The undertakings that he has given expressly state that he gave them without any admission of liability or any acceptance that he has been guilty of or is likely to be guilty of any wrongdoing. That remains his position. Nonetheless, he accepts, as he must this long after the event and with no appeal of the order in either its original or amended form, that the injunctions made against the second defendant and third defendant were properly made in law balancing the legal interests of all parties.

The applications before me seek variations of the order. In so far as the applications may suggest that there should be variation that is not based on a change of circumstances, the first defendant states that would require a reconsideration of the whole order with the tendering of witnesses for cross examination purposes. He makes the point that his undertakings were given and the injunctions were made on a compromise basis. He accepts that a change of circumstances might justify some amendment of the order. However, any more substantial amendment not based on a change of circumstances would necessitate a full hearing on the facts. The first defendant’s point is well made. I approach these applications on the basis of variations based solely on alleged changes in circumstances.

There are four specific aspects to be considered.

Draft amended orders have been attached to the applications. Three further drafts (“A”, “B” and “C”) with an explanatory note have been supplied since the hearing. The first defendant has seen all three drafts and has supplied his own note commenting on the drafts. I will return to the drafts and the terms of any variation in due course. Before doing so, it is necessary to address the substance of the applications.

The first aspect relates to the regulation of events outside the store. The existing order makes provision for exclusion zones and specific protest areas at the time of “Major Events” outside the store. “Major Events” are defined in the order as the two main sales events in the summer and winter. It also makes reference to a “Father Christmas Event” and “Special Events” each of which are separately defined with arrangements as to the control of the defendants. The claimants seek an amendment to simplify the order and to exclude the defendants from the area at the time of all outdoor events and to regulate where the defendants may assemble and protest at the time of in-store events. A variation solely based on simplification may be welcome and helpful from a management perspective but it is not a change of circumstances. For the reason already referred to, I reject any variation on that ground. However, that is not the real basis for the application. It is contended by the claimants that there has been a radical change in the nature and scale of events that are now put on by them such that the existing order as to exclusion zones and specific protest areas are no longer fit for purpose and the arrangements for all outside events and in store events need to be revised.

Up until 2012, what used to happen was that events involving special visitors attending the store would generally involve the visitor arriving in Hans Crescent, walking towards a focal point near to the entrance to the store, acknowledging the crowd and then entering the store. There were variations as to the classification of the events, which necessitated different exclusion zones and protest areas in some cases. However, the order has been constructed on the basis that what needed to be controlled was a movable scene lasting a short period of time. If a protest area was required the defendants would be within a defined area close to the focal point near to and opposite the place where media representatives were also located. The protest could be seen by anyone in close proximity to the focal point. The interests of all parties were protected.

Since the time the order was made, the claimants have started to utilise to greater advantage the fully completed development of Hans Crescent. It has taken time for the development to be completed and for it to be fully utilised. The existing order did not take into account its fully completed state and its potential. It is now not only fully pedestrianised but it includes trees and benches for seating and it has become a public amenity space where the public can relax, meet friends, eat and socialise in a pleasant residential and shopping area. It is has become a tourist hotspot likened to the area around Covent Garden. In conjunction with the Royal Borough of Kensington and Chelsea, the store is now organising more substantial events in the Hans Crescent area, which are drawing larger crowds to see what effectively is a show.

One particular example relied upon is an event on Boxing Day 2012, which was the first day of the winter sale and was thus classified as a major event. A large stage was erected in Hans Crescent. Cirque du Soleil performed a gymnastic, dance and musical extravaganza show. A huge family crowd turned up. Some people were there for the event. Some people were there as a prelude to shopping. The show continued for some time. It was a fixed, as distinct from a movable, event. The defendants protested from a fixed point within their protest area alongside the stage. There were difficulties as to the precise location of the protest area. Issues arose as to shouting by protestors and the obstruction of sight lines by the display of protest banners. I have read witness statements in relation to what happened as well as the documents supplied by the first defendant. I have also had the opportunity of studying photographs and CCTV that was taken of the event. Some of the images were played during the course of the hearing. From all of this material, I have a very clear understanding of the nature of the event and what happened.

A second example relied upon is an event on 7 October 2012 when Lady Gaga arrived in Hans Crescent to advertise some perfumery inside the store. The claimants correctly anticipated a large crowd including a number of young children attending the event. The claimants informed the first defendant that the attendance of Lady Gaga would be more like a Father Christmas event in the way that the celebrity would attend and that those in attendance to witness the event would invariably be children, teenagers and families. The claimants were concerned that the attendance of the defendants in the crowd could end up being similar to a Father Christmas event in 2007 when members of the public with crying children allegedly became annoyed and harassed by the defendant’s reaction to them. The defendants attended the Lady Gaga event. It is the claimants’ case that the defendants positioned themselves at the front of the crowds with banners and placards, in and amongst families and children, causing a nuisance, annoyance and harassment to members of the public in attendance enjoying the event. From statements, photographs and CCTV evidence, I have a very clear understanding of the nature of the event and what happened on this occasion.

The claimants acknowledge that these events are part of their marketing strategy and are therefore associated with the store’s activities. However, it is argued that they have a wider benefit. There are no admission fees. The events are open to anyone. They are a benefit to the public at large. Many attendees will not be customers in the store. The events are part of the claimants’ role as a tourist attraction in the area. The concern of the claimants is that the intention of the defendants appears to be to disrupt and to spoil the events by shouting, using loudhailers, jostling for position, pushing themselves to the front, banging into people with their placards, draping banners on the claimants’ property and obscuring other people’s view of the spectacle. The events are supposed to be fun for all concerned. The presence of protesters at such close proximity spoils them. At the time of the events, the predominant purpose of those who are in attendance is not to shop. It is enjoyment. In contrast, the defendants’ real sole purpose is to stop the sale of fur. They would be able to maintain contact with the customers of the claimants and make their protest if any one of the alternative draft orders was substituted for the present order.

The first defendant disagrees with the way that the defendants have been portrayed. He relies upon the fact that there have been no convictions of any protestors over the whole time of the order. He therefore argues that they have behaved responsibly and exercised their rights peacefully within the ambit of the current order. He disputes the contentions of the claimants about the extent of disruption caused by the defendants at events. He contends that there is no real change of circumstances. Hans Crescent has been pedestrianised for some considerable time and it is not new to have celebrities coming to Harrods; they have been coming for some time. Neither is a change of circumstance. The claimants may be inconvenienced by having to manage the defendants, particularly when there are large crowds, but inconvenience is also not a change of circumstance. If the location of the protest areas is a problem, then there are other places where the protest areas could be located within Hans Crescent. He refers to there being a protest area next to the barriers adjoining the walkway on the far side of Hans Crescent either directly opposite door five or alternatively to the right or left of a position opposite door five of Harrods. The claimants’ applications do not address these as possibilities because in reality the claimants want the defendants to be removed from the whole of the Hans Crescent area rather than manage them within the area. The first defendant further argues that it is not sufficient for the defendants to be permitted to assemble and protest outside the store at the main entrances. The present order preserves the defendants’ rights peacefully to assemble and protest within Hans Crescent subject to the exclusion zones and, where necessary, within protest zones. The court should not narrowly define those rights in the absence of any true change of circumstances. The consequence of the order being amended and the defendants being excluded from Hans Crescent may be drastic in that many of the defendants will be discouraged from attending future protests.

The second aspect relates to loudhailers. The current order prohibits loudhailers within four and a half metres of the building line, not during events and with a time restriction of fifteen minutes on and fifteen minutes off over a seven hour period during a day. The claimants seek a complete prohibition on the use of loudhailers in Hans Crescent, Basil Street, Hans Road and along the front of the store on Brompton Road. They also seek a reduction of the seven hour period to one of two hours. The claimants contend that the use of loudhailers, particularly in the Hans Crescent area, is annoying to the public, customers and staff entering and leaving Harrods and other premises. The messages coming from the loudhailer are not clear, are often very distorted and appear to cause annoyance, harassment and alarm rather than the expression of a view or opinion. Basil Street and Hans Road are residential areas and the same principles apply. Varying the order to exclude the use of loudhailers in these areas would not inhibit the freedom of expression of the defendants. They would still be able to impart their message in all areas by speaking to people face to face, by handing them leaflets, and by inviting people to view their website or their Facebook page. They would also still be able to use loudhailers across the road from the front entrance to the store or from around the Knightsbridge tube station which is the area most members of the public pass when they enter and exit the store.

The first defendant objects to the loudhailer variation. He submits that the only change in circumstances is the completed pedestrianisation of Hans Crescent. He draws attention to the proposed area of exclusion including the area around the tube station, which has been pedestrianised for a long time. There is therefore no basis for excluding that area. In relation to the other areas, he submits that there is no evidence to support the contention that loudhailers in the proposed areas have caused any problems, nor that there is any justification to reduce the seven hour restriction to two hours.

The third aspect relates to photography and filming outside the store.

The restriction on photography and filming is presently worded to prohibit intentional photographing of protected persons with the purpose of identifying them and/or targeting them in connection with protests. The proposed variation extends to filming as well as photographing and also includes a prohibition on continuing to film individual employees when requested by them not to do so.

The first defendant does not believe that there has been any incident justifying any change of the existing wording. However, the minimal proposed variation is not one that he believes will have an affect either way on the conduct of protests.

The fourth and final aspect relates to the duration of the order.

The claimants seek a permanent order with a provision to vary the order to remain within it. The first order made by the court was as long ago as 2005. All orders since that time have been time controlled. The claimants have never sought costs orders against any of the defendants. However, the requirement to come back to court every couple of years is a time consuming and costly process for the claimants. It also impacts upon the court’s time and convenience. When the order was first made, it was not known for how long the protests would continue. In such circumstances, an order which was time controlled was appropriate. The protest has continued now for over seven years. There is no indication that it is going to stop. For these reasons, it is submitted that the time has come for a permanent order to be made with a right to vary it or discharge it if circumstances justify such an application.

The first defendant objects to a permanent order being made. He stresses that part of the original compromise was that the order would be time controlled. The lengthy period that has elapsed since the order was made does not amount to a sufficient change of circumstances to justify a change in the duration of the order. Returning to court on a regular basis is a way that the defendants are able to check any abuse by the claimants of the precise terms of the order. The financial resources of the claimants are such that the cost of returning to court periodically is not a sufficient reason for making the order permanent. In contrast, the defendants have no financial resources with which to fight the claimants and the defendants will therefore lose the opportunity to challenge the continuation of the order in the future at hearings such as this one if the order is made permanent.

As already stated, I am satisfied that the order presently in force has been properly drawn up and represents a fair balance between the competing rights of the claimants, defendants and the public. However, circumstances do change and a re-evaluation of the terms of the order may be justified. It was no doubt for this reason that the possibility of varying the order was built into its original terms.

The principles to be adopted when considering whether a variation should be ordered require an assessment of the significance of any change in circumstances and the balancing of the competing rights of all parties. In so far as the applications seek to adjust the terms of the order to the prejudice of the defendants, I have kept firmly in mind their Article 10 and Article 11 rights. In this regard, I am mindful of the observations of the Master of the Rolls in his judgment in The Mayor Commonality and Citizens of London v Samede [2012] EWCA Civ 160

“…….the answer to the question [of what are the limits to the right of lawful assembly and protest on the highway] is inevitably fact-sensitive and will depend on a number of factors….those factors include but are not limited to the extent which the continuation of the protest would breach domestic law, the importance of the precise location to the protestors, the duration of the protest, the degree to which the protestors occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public.”

In relation to the regulation of events outside the store, I accept the first defendant’s argument that the pedestrianisation of Hans Crescent has been an ongoing project for some time. However, it has been a complex and gradual process. I am satisfied that its full effect was not taken into account at earlier hearings. I am equally satisfied that there has been a change of circumstances in relation to the nature and extent of the events within the Hans Crescent area. In relation to the examples referred to above, and from all of the material I have seen and studied, I am satisfied of the following matters.

The Boxing Day “Major Event” in 2012 was innovative and new and was not an event that was envisaged when the order was originally drawn up. The show was undoubtedly a marketing event for Harrods. It drew crowds. It was a welcome attraction to a holiday crowd. It attracted visitors to the scene, a number of whom will have entered the store as customers. However, it was incidental to the shopping within the store. At the time of the show, the concentration of the crowd would have been on the enjoyment of the spectacle and not on shopping. I am satisfied that the location of the protest within the protest area, the presence of the banners of protest interrupting sight lines and the actions and sounds of the protesters diminished that enjoyment such that the careful balance of the rights and interests of all parties was upset. I am equally satisfied that an alternative location of a protest area within Hans Crescent would have had a similar effect and a more substantial amendment to the order can be made for future events without extinguishing or severely affecting the rights of the defendants to make their protest reasonably and effectively in the vicinity of the store.

The Lady Gaga event is what has been referred to as one of the “Red Carpet” events. That type of event is not new. The scale of it, though, was much larger than previous “Red Carpet” events. The first defendant has made the point that the red carpet events appear to be changing in character such that it is sometimes difficult to distinguish such events from a more major event. The celebrity or some supporting personality or act accompanying the celebrity may perform in Hans Crescent and may do so on some staging. The identification of “red carpet” events and making arrangements in an order to manage protests is therefore no straightforward task. “Red Carpet” events can merge into a “Major Event” causing uncertainty and illogical interpretation of an unnecessarily complex order.

These findings lead me to the conclusion that there has been a change of circumstances in relation to the characterisation of Hans Crescent and the events that are carried on within it. I am not satisfied that the existing order provides sufficient protection for the rights of the claimants, customers and the public to enjoy the facilities and events in the Crescent. I am equally satisfied that the rights of the defendants can be protected by ensuring that they can continue to assemble and protest outside the Hans Crescent area marked in blue on plan two. That preserves their access to the important pedestrianised area surrounding Knightsbridge tube station which is adjacent to what I accept is the busiest entrance to the store. The claimants are not seeking to remove or curtail the defendants’ rights to that area which I am satisfied must be preserved.

For these reasons, I approve the substance of draft Order A to reflect the changes in relation to what the order now refers to as “Outdoor Events” and “In-Store Events”.

In relation to loudhailers, I accept the claimants’ contentions, but only in relation to the exclusion zone in plan two. The loudhailer exclusion zone in plan three is too widely drawn and restrictive of the defendants’ activities. In my judgment, there is no justification for an increase in or further restriction along the Brompton Road or in the pedestrianised area surrounding Knightsbridge tube station. The loudhailer exclusion zone should reflect the same zone as in plan two. The order should also continue to refer to the seven hour period. In my judgment, there is no justification for a shorter two hour period outside the exclusion zone. To this extent, draft Order A needs to be revised.

In relation to photographing and filming outside the store, the amendments are minimal and what is sought effectively amounts to clarification of what exists. There can be and is no objection of real substance to the amendments. I allow them as drawn in draft Order A.

The duration of the order is a much more substantial variation. The protest has continued for a lengthy period of time. There is no sign that Harrods are going to stop selling fur goods. There is no sign that the defendants are going to stop protesting. In such circumstances, I am satisfied that the protest is likely to continue for an indefinite period. The cost of coming back to court every two years and the time and inconvenience of doing so for the parties and the court justify a more lengthy order. If the order is made for a period in excess of two years the interests of the defendants are protected by preserving the right to vary or discharge the order. However, there is some substance in the argument of the first defendant. I therefore refuse the application for a permanent order but grant an extension of the order for a five year period. Draft Order A will need to be amended to reflect this five year period.

The effect is to approve draft Order A save for the alterations referred to above. The revised order together with the exhibited plans should be supplied to me for approval. The order envisages that pursuant to the decision I have reached that the first defendant will give undertakings in the terms as amended and that injunctions will be made against the other defendants, thus reflecting what has happened in the past. If the first defendant agrees to that course, the order will be made in those terms. If no agreement is forthcoming, I am satisfied that injunctions should be made against all defendants. At the time of handing down the judgment, I give liberty to the parties to make representations about the fine detail of the order.