NATIONAL HIGHWAYS LIMITED v PERSONS UNKNOWN CAUSING THE BLOCKING OF, ENDANGERING, OR PREVENTING THE FREE FLOW OF TRAFFIC ON THE M25 MOTORWAY, A2, A20 AND A2070 TRUNK ROADS AND M2 AND M20 MOTORWAY, A1(M), A3, A12, A13, A21, A23, A30, A414 AND A3113 TRUNK ROADS AND THE M1, M3, M4, M4 SPUR, M11, M26, M23 AND M40 MOTORWAYS FOR THE PURPOSE OF PROTESTING & ORS.

The Claimant, National Highways Limited [“NHL”], seeks summary judgment and various remedies in 3 sets of proceedings brought in relation to protests carried out on the Strategic Road Network [“SRN”] under the banner of Insulate Britain [“IB”]. The Claimant was represented by Myriam Stacey QC, Admas Habteslasie and Michael Fry, of Counsel. I express my gratitude for all the assistance I have received from all the lawyers in the case.

IB is a protest group made up of people whose aims include two demands. First, that the Government undertakes to insulate all social housing in the UK by 2025, and second to do the same for all other housing by 2030. The twin aims behind those demands, as described by IB, are to save the planet from disastrous climate change and to soften the blow of rising fuel prices. The means employed by IB have included protests blocking roads, and protest designed to disrupt other parts of civil society such as various magistrates courts. I should stress that these are all peaceful protests. None of the named Defendants were represented but Ben Horton, who had been a named Defendant, attended at Court and made some submissions about costs. I also made an order under CPR 40.9 and thereafter heard argument from Owen Greenhall of Counsel, who appeared to make submissions on behalf of a person who took an interest in the litigation.

There have been 3 interim injunctions granted in 3 sets of proceedings:

A number of contempt of court applications for breaches of the terms of those injunctions led to protestors being imprisoned and subject to lesser sanctions, in the decisions in NHL v Heyatawin and others [2021] EWHC 3078 (QB), NHL v Buse and others [2021] EWHC 3404 (QB), and NHL v Springorum and others [2022] EWHC 205 (QB).

The Claimant sought summary judgment against 133 named Defendants. Those named Defendants have all been arrested by various police forces in operations connected to IB protests, whereafter their details were notified to the Claimant under disclosure provisions of the interim injunctions. In addition to summary judgment, the Claimant sought:

There are certain procedural orders the Claimant also sought, namely to join the 3 sets of proceedings and to order alternative service. The former is uncontroversial, and I made that order, the latter is less straightforward and I will address that later in this judgment.

The hearing in this case took place on 4 and 5 May 2022. At the end of the hearing I announced some decisions and reserved judgment on others; this judgment sets out the decisions on reserved issues and explains my reasons for all the decisions I have, or had, to take. If any party seeks to appeal, or to vary the order, the handing down of this judgment should be seen as the date of the decision for the purposes of the periods to make any such applications.

The injunction the Claimant sought covers:

The evidence the Claimant relied on is set out in the witness statements of Nicola Bell and Laura Higson.

Nicola Bell is the Regional Director for NHL’s Operations [South East Region]. In her witness statement dated 22 March 2022 she describes the protests that began on 13 September 2021, in which protestors seemingly affiliated to IB blocked motorways by sitting on the carriageways and by gluing themselves to the roadway. She described their activities as “dangerous and very disruptive” though she provided no details of any actual injury to anyone. Ms Bell also set out the importance of the roads that the Claimant seeks to protect by way of injunctive relief.

Laura Higson is a lawyer at DLA Piper, NHL’s solicitors. In her witness statement of 24 March 2022, she set out the protests that had occurred:

Ms Higson also addressed the risk of future protests. In her 24 March statement, she set out a press release in the name of IB, dated 7 February 2022:

Ms Higson reported a further IB posting spoke of plans for a “Rave on the M25” on Facebook, beginning at 12pm on 2 April 2022 and ending at 4am on 3 April 2022. This event does not seem to have taken place. Ms Higson then set out a series of news releases that mainly concern another group, “Just Stop Oil” [“JSO”] with whom IB wrote of having formed an alliance. The focus of the JSO posts was very much on acting so as to interfere with various parts of the oil industry and while there have been many such protests reported in the press and other media, and the Courts have dealt with a number of applications by Oil companies for injunctions, few have targeted the SRN.

Ms Higson also detailed the attitude of at least some protestors towards the Courts in general and injunctions in particular. I can summarise those public comments as expressing views that range from defiance to complete disinterest. Those comments by people associated with IB were put in evidence by the Claimant in support of the application for an injunction but do not seem to me to be particularly relevant to that subject: the fact people may not obey an injunction is not a basis for the Court to refuse to make an order [see Lord Bingham in South Buckingham District Council v Porter [2003] 2 AC 558 [at 32]], but nor is disrespect for the Court process a reason to do so. Where that attitude may be of relevance is when I come to consider the evidential basis for the applications for summary judgment.

Finally, in her first statement, Ms Higson reported on a number of incidents whereby IB protests have led to a hostile reaction from other road users:

In a further statement dated 25 April 2022, Ms Higson deals with three topics:

Of the 143 Defendants originally listed, the Claimant did not seek to continue the action against 10 because of troubles with serving the claim upon them and other issues. I consequently dismissed those claims. Of the remaining 133 named Defendants, 24 have been subject to findings of contempt on the basis of substantial evidence of their taking part in protests blocking the M25 [see NHL v Heyatawin and others [2021] EWHC 3078 (QB) at 46, NHL v Buse and others [2021] EWHC 3404 (QB) at 26, and NHL v Springorum and others [2022] EWHC 205 (QB) at 30]. Thus, for some purposes of the decisions I had to take the 133 remaining Defendants could be seen as 2 groups; the 24 who have been sanctioned for contempt [“the 24”] and the 109 who have not [“the 109”].

The main issues I had to consider are:

In advance of the hearing Hodge, Jones and Allen Solicitors served witness statements from Alice Hardy, a Solicitor in the firm’s Civil Liberties Department and Jessica Branch, an environmental activist who is not a named defendant and has not attended any IB protests. Those statements argued that the order sought by NHL was overly wide and would have a chilling effect on protests generally. Ms Hardy also expressed concerns on behalf of a campaigner for greater safety measures to protect cyclists who, on occasions, has demonstrated or otherwise campaigned on roads, including of the type that would be caught by NHL’s draft order. Hodge Jones and Allen also instructed Counsel, Mr Greenhall, who submitted a Skeleton Argument and attended at the hearing. This raised the issue of whether I should permit Ms Branch to advance argument by way of Mr Greenhall’s submissions. The legal route for this to happen is rule 40.9 of the Civil Procedure Rules that states as follows:

On its face, the terms of rule 40.9 are strikingly wide. There is no guidance within the rule itself, and no appellate guidance of which I have been made aware, as to how a judge should decide such applications. Ms Stacey, for the Claimant, submitted that I should not permit Ms Branch to make submissions unless and until she was joined as a Defendant, not least as to do otherwise would equip her with the privilege of a participant without the risk of an adverse costs order for unsuccessful participation. Ms Stacey stressed that the words “directly affected” were the only limit on the rule and suggested that Ms Branch was not so affected. In addition, Ms Stacey drew my attention to the order of Chamberlain J who, in his directions [paragraph 14] for this hearing, stated:

Ms Branch’s witness statement expresses a general view that the terms of the order sought are so wide as to prevent protests that are lawful and, more specifically, sets out her concern that they might catch people such as her who, while not involved in IB or any of its protests, might protest near some of the many roads specified in NHL’s draft order and find herself inadvertently caught up in contempt proceedings. I decided that I should grant the rule 40.9 application on the following grounds:

While reluctant to vary the order made by another Judge in advance of the hearing it did seem to me, with respect, that Chamberlain J’s order was at odds with rule 40.9 which specifically allows for the possibility of participation by non-parties, in other words those who are not defendants. I therefore varied that order to permit Mr Greenhall to advance submissions on behalf of Ms Branch.

Before passing on to other matters I should emphasise this was a decision taken on the facts of this case and does not purport to lay down an immutable principle. There may well be other protest cases where it is not appropriate to grant such an application. In addition, if the rule was used as a mechanism to mount arguments that took up excessive time, were repetitious or did not assist the Court [none of which criticisms can be levelled at Mr Greenhall’s measured and focused submissions], then there are ample and robust case management powers to stop that happening.

In setting out my reasoning on this aspect of the case I need to rehearse some fundamental underlying principles. The need for this approach occurred because of the course of the hearing. I had indicated my concerns about the evidential basis for the summary judgment applications in respect of some of the Defendants. At that stage Ms Stacey QC, on behalf of NHL, argued that their cause of action was, perhaps amongst other things, for an injunction and that the evidence advanced by the Claimant could be a basis for my giving summary judgement in favour of a final injunction, on the basis that even if I doubted there was sufficient evidence to find tortious liability, the same evidence could and should be seen as an ample basis to show the justification for granting a final injunction. After entertaining those submissions in argument, I reflected on them overnight, then rejected them for the following reasons.

An injunction is not a cause of action, it is a remedy. An application for an injunction can only succeed if it is advanced as a necessary relief for an underlying substantive claim. In my view this is basic and beyond debate:

Summary judgment under CPR part 24 is available for a cause of action or for an issue within that cause of action, but not for a remedy. This is not to say that Judge granting summary judgment may not also grant the consequent relief, but she or he can only do so after the cause of action has been resolved. Although the word “trial” is at times used to describe an assessment of a remedy [see, for example, White Book 2022 at 12.0.1] in both the CPR 24 and the accompanying Practice Direction the language is consistent with the narrower meaning, namely a trial of a cause of action. Further, in the context of this case it would make no sense to describe an injunction as “final” if the underlying cause of action was yet to be resolved.

On the basis of the approach I have described, I turned to consider the applications for summary judgment in the case of the 24 and the 109. The test I had to apply is set out in CPR 24.2:

The causes of action pleaded by the Claimant are trespass, public nuisance and private nuisance. I will consider the basis for trespass more fully later in this judgment but for these purposes I summarise the law [based primarily on DPP v Jones [1999] 2 AC 240 and DPP v Ziegler [2022] AC 408] as being that a protestor using a highway may have a defence to an action for trespass but will not do so, to address the specifics relevant to my determination of these applications, if they have protested by obstructing traffic on the M25.

Mummery LJ described private nuisance in West v Sharp (1999) 79 P&CR 327 at 332, as follows: “Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him”.

Obstruction of the highway, for the purposes of public nuisance, is described in Halsbury’s Laws, 5th ed. (2012) at para. 325 where it is said:

I note that neither public nor private nuisance have been subject to an appellate review in the light of the Article 10 and 11 rights of protestors, as was carried out for trespass in DPP v Jones and other cases to which I have been referred. It seems to me both torts will have a potential defence if the actions of protestors cause some interference on a road but, once more moving from the general to the specific, such a defence would not render obstructing traffic on the M25 a lawful, non-tortious, act.

With those definitions in mind and applying the broad hearsay provisions of section 1 of the Civil Evidence Act 1995, I found there was sufficient evidence to give summary judgement against the 24 based on the decisions in NHL v Heyatawin and others, NHL v Buse and others [2021] EWHC 3404 (QB), and NHL v Springorum and others [2022] EWHC 205 (QB). Although the Court in those cases was deciding whether there had been breaches of an injunction, rather than the commission of torts, the factual summaries in those cases gives sufficient details for me to conclude there is no realistic basis to believe there would be any issue were there to be a trial of those defendants.

The position of the 109 is different. The only basis offered by the evidence supplied by the Claimant was within the witness statement of Laura Higson [at her paragraph 51]. The 28 sub-paragraphs are similar, so I take only the first 2 to illustrate their general nature:

At no stage in this part of her witness statement does Ms Higson identify which defendant was arrested on what date. There are no details of the activities that led the police to arrest. There has been one conviction in Kent for an offence of criminal damage but there is no description of what the unidentified arrestee had done. In other sub-paragraphs Ms Higson states that the police took no further action against some of those arrested on some occasions. Ms Stacey sought to support Ms Higson’s evidence by pointing out that none of the defendants, with 2 exceptions I will come to shortly, had served a defence to NHL’s claim. In the hearing I was told that the reason [or at least one reason] for the lack of specificity was “GDPR”: I struggled to understand that explanation given that there have been 3 successful contempt applications wherein defendants were named and their detailed activities set out, given the terms of the disclosure orders previously made allow for arrestees’ details to be deployed in this litigation, and given that in her second witness statement Ms Higson gives the names, dates and [at least some] details of 3 of those who were arrested but later did respond with defences to the claim. Ultimately, however, the reasons for how the Claimant chose to present their case is a matter for them, not me.

The task I had to undertake was to assess the material put before me and decide whether the Claimant had shown there was no real prospect of a successful defence to the claims of the 109 Defendants. In my judgment the evidence supplied was manifestly inadequate, given:

In the light of the evidence called I granted summary judgment in respect of the 24 and dismissed the application in the case of the 109. The consequence is that the injunctions I was persuade to grant are both final, for the 24, and interim, for the 109 and the unknown defendants. In the light of the Court of Appeal’s decision in London Borough of Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13, I did not view a hybrid injunction as impossible and my preference was the simplicity of the same, but Ms Stacey has expressed a firm preference for separate final and interim injunctions, and I did not think it right to deny the Claimant their choice as to the structure of the relief. Nonetheless, I consider the requirements of both injunctions in a single section of what follows.

The well-established test for the grant of an interim injunction was described in American Cyanamid Co v Ethicon Ltd [1975] AC 396. The first 2 aspects, whether there is a serious question to be tried and whether damages would be an adequate remedy were no injunction granted, are easily met in this case: the actions previously carried out and those threatened by IB clearly amount to a strong basis for an action for trespass and private and public nuisance. Given the scale of disruption at risk and the impracticality of obtaining damages on that scale from a diverse group of protestors, some of whom may have no assets, damages would obviously not be an adequate remedy. The balance of convenience, however, is not so simply resolved in a case involving a largely anticipatory injunction, unidentified defendants, and the human rights of both sides: in my view that balance can be achieved in this case by modifying the terms of the order from those in the Claimant’s draft. I explore the reasons for that being required, below.

The injunctions sought are anticipatory injunctions. In Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch) Marcus Smith J summarised the effect of 2 decisions of the Court of Appeal on this topic, and I adopt his summary with gratitude. The questions I have to address are:

Mr Greenhall pointed out that the IB protests described by NHL were all in 2021 and there has been no repetition this year. This is a fair point, but it is outweighed by some of the public declarations made on behalf of IB. Once a movement vows “to cause more chaos across the country in the coming weeks” and threatens “a fusion of other large-scale blockade-style actions you have seen in the past”, the Claimant must be entitled to seek the Court’s protection without waiting for major roads to be blocked. In my view the scale of the protests being discussed, and those that have already occurred, are sufficient to meet the heightened test of harm so “grave and irreparable” that damages would be an inadequate remedy.

Section 12(2) of the Human Rights Act 1998 would prevent me from granting an injunction unless I was satisfied that the Claimant had taken all practicable steps to notify the defendants: in this case I am satisfied of that in the cases of the named defendants and will modify the terms of the service of the injunction to avoid rendering unknown people liable until they too have been made aware of the order. Section 12(3) bans the restraint of “publication” by way of an interim injunction unless the Court is satisfied that the Claimant is likely to succeed in stopping publication at any final trial. There is an argument that protests such as those carried out by IB should not be considered as “publication” at all but given the Court of Appeal’s decision in Ineos [as below] I proceed on the basis I should consider them as such. Nonetheless, I am satisfied that the type of “publication” that will be banned by the order I am prepared to make will be likely to be similarly banned at any trial.

Injunctions against unidentified defendants were considered by the Court of Appeal in the cases of Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100 [“Ineos”] and Canada Goose Retail Ltd v Persons Unknown [2020] 1 WLR 2802 [“Canada Goose”]. I summarise their combined affect as being:

The balance between the competing rights of protestors and others have been considered in a series of cases. In DPP v Jones [1999] 2 AC 240 the House of Lords allowed an appeal by protestors convicted on the basis they had taken part in a “trespassory assembly”. The speeches in the judgment make clear that protests could be a reasonable use of a public highway. Although the European Convention was discussed, the Human Rights Act 1998 was not yet in force and that decision, in my respectful view, has to be read with a degree of caution given the more recent case of Ziegler, to which I now turn.

In Director of Public Prosecutions v Ziegler [2022] AC 408 protestors had blocked a road leading to a venue where an arms fair was being held, by sitting in the road and by attaching themselves to heavy objects. They had been arrested and prosecuted for obstructing the highway under section 137 of the Highways Act 1980, which offence has a “lawful excuse” defence. The District Judge hearing the trial dismissed the charges on the basis that, having weighed up considerations that pulled either way including the protestors’ Article 10 and 11 rights, he concluded the prosecution had failed to negate the statutory defence advanced by the defendants. The Divisional Court allowed an appeal against the decision of the District Judge. The Supreme Court then allowed the further appeal and restored the dismissals. Ziegler was an important, perhaps a landmark, decision about the right to protest, but its effect should not be misunderstood: the Court did not declare that blocking roads was henceforth a legitimate and lawful form of political action, but that on occasions it might not be a crime under that section of that act. It is notable that the Supreme Court discussed and approved a list of considerations of the detailed facts that a judge should weigh in such cases, before reaching a decision.

The limits to Ziegler were made clear in DPP v Cuciurean [2022] EWHC 736 (Admin) in which Lord Burnett CJ held that Ziegler did not impose an extra test in a case of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994, as Article 10 and 11 rights do not generally include the right to trespass, and parliament had set the balance between those rights, and the lawful occupier’s rights under Article 1 of Protocol 1 [“A1P1”], by the terms of that offence. The type of trespass in Cuciurean was on premises to which the public were not allowed any access, so while the decision is important and, of course, informative, it does not provide a direct and complete answer to a case, such as the instant one of trespass on a highway.

The right to peaceful enjoyment of one’s property has been honoured by the Courts for centuries, albeit not described as a human right nor still less as A1P1. Article 10 and 11 rights have been described in numerous cases, from which I select only two examples:

In assessing the balance between competing rights in protest cases, it is not for the Court to choose between different political causes. In City of London Corporation v Samede [2012] PTSR 1624 Lord Neuberger, M.R., stated as follows [within 39 to 41]:

It is clear that once breach proceedings are under way, it is no defence for the alleged contemnor to argue that the injunction should not have been granted in the first place, or that its terms are too broad. The balance between property rights and the right of protestors is one that has to be struck when the injunction is granted [see National Highways Ltd v Heyatawin and Others [2021] EWHC 3078 (QB), at 44 and 45].

To draw together the various legal threads: in deciding the terms of the injunctions I had to be conscious of the right to protest which may, on occasions, mean a protest that causes some degree of interference to road users is lawful [DPP v Jones and DPP v Ziegler]. I should not ban lawful conduct unless it is necessary to do so as there is no other way to protect the Claimant’s rights [Canada Goose]. The consequence of my banning protests that should be permitted would be to expose protestors to sanctions up to and including imprisonment, as there is no human rights defence by the time of contempt proceedings [NHL v Heyatawin].

My decision on the terms of the injunctions was communicated in discussion at the end of the hearing and in drafts sent between the parties and myself since. As the detail can be seen in the order, I confine my explanation to broader principles. The general character of the views held by IB protestors are properly described as “political and economic” and as such are at the “top end of the scale”, as described in Samede, and the protests are non-violent; these matters weigh in favour of lawfulness. There are a number of matters, however, that go the other way. Having regard to the sort of criteria described in both Samede and Ziegler, there is no particular geographical significance to the protests, they are simply directed to where they will cause the most disruption. The public were completely prevented from travelling to their chosen destinations by previous protests; there was normally not, in contrast to the facts in Ziegler, an alternative route for other road users to take. While the protestors themselves have been uniformly peaceful, the extent of previous protests has caused an entirely predictable reaction from other road users, as described in Ms Higson’s statement, above. Judging the future risks of protests against IB’s past conduct I approved the terms of the draft injunctions that would ban the deliberate obstruction of the carriageways of the roads on the SRN but would not eliminate the possibility of lawful protests around or in the area on those roads.

Service on the named Defendants poses no difficulty but warning persons unknown of the order is far harder. In the first instance judgment in Barking and Dagenham v People Unknown [2021] EWHC 1201 (QB) Nicklin J [at 45-48, passages that were not the subject of criticism in the later appeal] stated that the Court should not grant an injunction against people unknown unless and until there was a satisfactory method of ensuring those who might breach its terms would be made aware of the order’s existence.

In other cases, it has been possible to create a viable alternative method of service by posting notices at regular intervals around the area that is the subject of the injunctions; this has been done, for example, in injunctions granted recently by the Court in protests against oil companies. That solution, however, is completely impracticable when dealing with a vast road network. Ms Stacey QC suggested an enhanced list of websites and email addresses associated with IB and other groups with overlapping aims, and that the solution could also be that protestors accused of contempt of court for breaching the injunction could raise their ignorance of its terms as a defence. I do not find either solution adequate. There is no way of knowing that groups of people deciding to join a protest in many months’ time would necessarily be familiar with any particular website. Nor would it be right to permit people completely unaware of an injunction to be caught up with the stress, cost and worry of being accused of contempt of court before they would get to the stage of proceedings where they could try to prove their innocence.

In the absence of any practical and effective method to warn future participants about the existence of the injunction, I adopt the formula used by Lavender J that those who had not been served would not be bound by the terms of the injunction and the fact the order had been sent to the IB website did not constitute service. The effect of this will be that anyone arrested can be served and, thus, will risk imprisonment if they thereafter breach the terms of the injunction.

The interim orders contained provisions requiring the various relevant police forces to provide NHL with the identities of those arrested in circumstances that suggest they may have breached the Court’s order, and to also supply the evidence that showed the conduct before arrest. This strikes me as the most efficient way to provide the Claimant with the means to enforce their order, and subject to adding in some confidentiality clauses, I made those orders.

NHL applied for a declaration to this effect:

In deciding whether to make the declaration I have to take into account, in the words of Neuberger J [as he then was] in FSA v Rourke [2001] EWHC 704 (Ch), “justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration”.

In my view this is not a case in which I should make such a declaration. After Ziegler it does not follow automatically in all cases that the use of the SRN for protests is unlawful or a trespass. While I could construct a proposition with caveats and qualifications, it would serve no useful purpose and might be positively unhelpful if it could be read as proffering some sort of arguable defence to contempt proceedings for the breach of the terms of the order that I have been prepared to grant. The injunction is already long and detailed and this judgment is designed to explain the reasoning behind it, and I see no reason to add any further explanation of the law.

The Claimant has stated that they do not seek damages in this case. I have reserved the issue of costs and will give a hand down judgment once I have received written submissions under a timetable agreed at the end of the hearing.