MBR Acres Limited & Ors v Michael Maher (aka John Thibeault) & Anor

This is the judgment following a contempt application made against the two Respondents for alleged breaches of an injunction order that was granted on 10 November 2021 (“the Injunction”). The judgment handed down on that date ([2021] EWHC 2996 (QB)) explains the terms in which the Injunction was granted. It also sets out the background and circumstances in which the Injunction was sought and imposed.

The hearing that led to the grant of the Injunction took place on 4 October 2021. That hearing was attended by the Thirteenth Defendant (“Ms Laidlaw”), she was also represented by solicitors, Cohen Cramer. The Fourteenth Defendant (“Mr Maher”), at that stage identified as “John Thibeault”, did not attend the hearing, and, at that stage, he was not represented. Judgment was reserved and handed down on 10 November 2021. Neither Ms Laidlaw nor Mr Maher attended the hearing on 10 November 2021. That is a point potentially of some significance as regards Ms Laidlaw. There was some discussion, at the hearing on 4 October 2021, of a possible exclusion zone being imposed, to a width 10 metres either side of the entrance to the Wyton Site and up to the mid-point of the carriageway. It was not until judgment was handed down on 10 November 2021 that the final dimensions of the exclusion zone were finalised. The width was extended to 20 metres either side of the gate.

The principal issue of contention between the parties is, after the introduction of the new CPR Part 81 in October 2020, whether (unless the Court permits alternative service or dispenses with service) an injunction order is required to be served personally on a defendant who is represented by solicitors before s/he can be found to be in contempt of court for alleged breach of the order or whether the effect of the CPR is to require that the injunction order be served on his/her solicitors.

The Injunction restrained both named Defendants to the proceedings – including these two Respondents – and certain categories of “Persons Unknown” as then defined.

So far as concerned the named Defendants, Paragraph 1 of the Injunction provided (so far as material):

Definitions, set out in Schedule A to the Injunction, provided:

Annex 1 to the Injunction was a plan of the Wyton Site marked with the Exclusion Zone around the entrance to the First Claimant’s premises. Annex 1 included boxes containing annotations. One of those provided:

The Claimants did not have an address for service for Mr Maher. The Injunction also granted the Claimants permission, under CPR 6.15 and 6.27, to serve the Order on Mr Maher via his Facebook account. Apart from further orders granting permission for alternative service on the Fourth, Eleventh and Fourteenth Defendants, the Claimants sought and obtained no other orders regarding service of the Injunction and did not mention, at the hearing, how they were proposing to serve the other named Defendants. I will return to this point below.

Mr Maher

Mr Maher was served by the alternative method permitted under the Injunction Order. The following Facebook message was sent to Mr Maher (albeit addressed to John Thibeault) at 17.27 on 15 November 2021 (“the Facebook Message”):

The message was read by Mr Maher at 22:20 that same day. Mr Maher simply responded with an emoji with a tear.

Ms Laidlaw

Ms Laidlaw instructed solicitors, Cohen Cramer, to act on her behalf in the proceedings. Cohen Cramer filed an Acknowledgement of Service indicating that they were acting on Ms Laidlaw’s behalf on 30 September 2021.

The Claimants’ solicitors did not serve the Injunction on Ms Laidlaw personally. Instead, they served it only on her solicitors, Cohen Cramer, by sending it by recorded delivery on 15 November 2021. It was received by Cohen Cramer on 17 November 2021. The letter serving the Injunction simply stated: “We enclose by way of service on your respective clients the Order of Mr Justice Nicklin dated 10 November 2021”. Service of the Injunction only on Cohen Cramer, and not personally on Ms Laidlaw, was not an oversight by the Claimants’ solicitors, but a conscious decision. In a witness statement provided during the hearing of the contempt application, the Claimants’ solicitor, Simon Pedley explained:

There was no mention, at the hearing on 10 November 2021, that this was the Claimants’ lawyers’ understanding of how the Injunction was now to be served upon the named Defendants who were represented by solicitors. As will become apparent from the rest of this judgment, had I been alerted to this point on 10 November 2021 and for the avoidance of any doubt, I would have included in the Injunction a specific requirement that the order be personally served on all named Defendants unless, exceptionally, there were grounds upon which an order for alternative service could be justified.

Mr Pedley’s witness statement does not disclose whether the Claimants’ lawyers had reached their novel interpretation of the requirements for service of the Injunction order before the hearing on 10 November 2021 or after. It is clear, however, that in the letter of 15 November 2021, the Claimants’ solicitors did not advise Cohen Cramer that they were not intending personally to serve the Injunction upon the Defendants represented by Cohen Cramer. Nor did the letter state that, in Mills & Reeve’s view, the changes to the procedural rules meant that service upon Cohen Cramer of the Injunction was a sufficient (and indeed, only permitted) method of service by the CPR.

One thing is clear. Some of the issues that have arisen in this contempt application could have been avoided if the Claimants’ solicitors had been a little more candid about their interpretation of what was required by the procedural rules.

There is no dispute that, subsequently, Ms Laidlaw was personally served with the Injunction when it was included as one of the supporting documents accompanying the First Contempt Application that was served personally upon Ms Laidlaw on 27 December 2021. In respect of the Second Contempt Application, therefore, there is no dispute that Ms Laidlaw had been personally served with the Injunction.

The Claimants have issued two Contempt Applications. The first, dated 17 December 2021, alleges that both Respondents have breached the Injunction (“the First Contempt Application”). The second, dated 16 February 2022, alleges that Ms Laidlaw has committed further breaches of the Injunction (“the Second Contempt Application”). Full particulars of the alleged breaches of the Injunction by the Respondents were given in the grounds to both Contempt Applications. In summary:

Both Contempt Applications are supported by evidence given by affidavit, which includes video evidence in respect of each alleged breach.

Neither Contempt Application was issued using the prescribed form N600. Beyond being told that this was deliberate, I have not received a satisfactory explanation why the Claimants chose to use a standard N244 Application Notice. Although it appears that use of the N600 form is not mandatory when making a contempt application, in my judgment, the N600 form ought to be used unless there are compelling reasons justifying not doing so. The form is standardised and has been framed, deliberately, to set out the information that is required to be provided under CPR 81.4(2) to ensure procedural fairness (see further [59] below). The N600 also contains important information to the respondent about his/her rights.

One consequence of the failure to use the N600 form is that neither Application Notice contains confirmation of the date on which the order alleged to have been breached was personally served on the defendant. This may explain why the Claimants did not use the N600 form. The Application Notices used by the Claimants also failed to include a statement that the order alleged to have been breached contained a penal notice (although this information was provided in the separate “Grounds of Application” that accompanied the Application Notice).

By Order dated 19 January 2022, the Respondents were given an opportunity to set out any grounds of resistance to the Contempt Applications made against them. The purpose of this was – rather like a Defence Statement in criminal proceedings – to identify and narrow the issues in dispute between the parties.

Pursuant to that Order, each Respondent filed a “Defence Statement” on 9 March 2022.

Mr Maher:

Ms Laidlaw:

There is no issue that, for the purposes of the Second Contempt Application, Ms Laidlaw had been personally served with the Injunction on 27 December 2021 (see [16] above).

Although Mr Maher had originally raised a challenge to the effectiveness of the service of the Injunction on him (on the grounds that he had not actually been able to access the Injunction via the link provided), by the end of the hearing Mr Maher no longer challenged that he had been properly served with the Injunction. That concession was realistic in light of the authority of Cuciurean -v- Secretary of State for Transport [2021] EWCA Civ 357.

In some cases, the need to secure compliance with a lawful injunction order will justify the Court granting permission to serve the injunction order by means other than personal service. In Cuciurean, the Court of Appeal held that if an order for alternative service has been made, and its terms complied with, then the respondent will have been given sufficient notice of the injunction order to sustain a contempt application. Thereafter, if s/he is found, to the necessary standard, to have breached the terms of the order, the defendant will be held to be in contempt of court.

But that is not an end of the matter. If such ‘deemed’ notice is unfair on the facts of any individual case, there are two safeguards.

A principal point of dispute between the Claimants and Ms Laidlaw is her contention that the injunction order has not been personally served on her and the Court has not made an order for alternative service in respect of service of the injunction order. The Claimants contend that, since the introduction of the new Part 81, it is not necessary (nor is it even permitted) to serve an injunction order personally on a respondent if s/he has solicitors acting for him/her.

The Grounds of Application for the First Contempt Application set out a summary of the Claimants’ case as to service of the injunction order on Ms Laidlaw:

The Claimants’ argument (which is addressed in more detail below) is that the new CPR 81 contains no requirement personally to serve an injunction order on a respondent. As such, it is contended that service of an injunction order is now governed by the general provisions of CPR Part 6, the relevant provisions of which are as follows:

The Claimants argue that the effect of these provisions is that, where a respondent to an injunction order has instructed solicitors, then, unless the Court orders otherwise, the order must be served on the solicitors and not on the respondent personally. To anyone familiar with the law of contempt, such a submission might appear startling. I shall consider below whether it is correct.

As I have noted, the Claimants’ primary submission, in respect of the First Contempt Application, is that service of the Injunction on Ms Laidlaw’s solicitors is sufficient to render her liable for breach of the order. In the alternative, the Claimants issued an Application Notice, on 14 January 2022, seeking an order, pursuant to CPR 6.15 and 6.27, that the steps taken of serving the Injunction on Ms Laidlaw’s solicitors “be deemed effective service” on her.

Separately, and finally, the Claimants contended at the hearing that the evidence demonstrates that the terms of the injunction had come sufficiently to the attention of Ms Laidlaw and that this justifies the Court dispensing with the requirement that the Injunction be served upon her.

Three witnesses, who had provided affidavits on behalf of the Claimants, gave evidence at the hearing of the Contempt Applications: Philip Burchell, David Manning and Susan Pressick. Largely, the important evidence in respect of the allegations of breaches made against the two Respondents was provided in video recordings, that were produced by the witnesses, of what took place outside the Wyton Site on the various dates.

None of the Claimants’ witnesses was cross-examined in any detail. A point that did assume some importance, at least initially, was about the marking of the Exclusion Zone outside the Wyton Site. Some lines had been painted onto the verge by Mr Manning, prior to the hearing on 10 November 2021, to demonstrate various distances from the gate to the Wyton Site and photographs showing the markings were shown to me at that hearing. Annex 1 to the Injunction had referred to the Exclusion Zone being marked with “posts on the grass verge” (see [7] above). In fact, no such posts were ever installed, but a point was initially raised that an existing bollard on the highway (which was actually situated within the Exclusion Zone) was understood by some of the protestors to be one of the posts that was being referred to in Annex 1. Mr Manning, who is one of the security officers at the Wyton Site, stated in his evidence that the bollards had been installed by the Highways Authority about a year after he had started to work at Wyton Site, which he thought would have been around 2015. Mr Underwood cross-examined Mr Manning about the painting of white lines to mark out the width of the Exclusion Zone, but Mr Manning confirmed that he had not painted a white line on the road or verge. Ms Pressick’s evidence had suggested that he had painted a white line, and she was cross-examined about this by Mr Underwood. Ultimately, in the light of the position finally adopted by the Respondents (see [37]-[38] and [45] below), it is not necessary for me to resolve this dispute.

Mr Maher gave evidence, and he confirmed a witness statement, dated 27 March 2022 that he had filed voluntarily in answer to the allegations made against him in the First Contempt Application. Mr Maher was cross-examined by Ms Bolton. Mr Maher accepted that he received the Facebook Message, but he stated that he had experienced problems accessing the Injunction using the link provided. Nevertheless, Mr Maher confirmed that he knew that the Injunction had imposed an Exclusion Zone around the entrance of the Wyton Site, but he stated that he thought it was to a width of 10 metres either side of the gate. As part of her cross-examination, Ms Bolton played extracts from the video footage upon which the Claimants relied to establish that Mr Maher had entered the Exclusion Zone on the occasions alleged against him. In response to several of these incidents, Mr Maher responded by stating that if he was in the Exclusion Zone, as appeared from the video evidence, then he apologised. In response to one question, Mr Maher stated, by way of example: “… if it appears I’m in the Exclusion Zone, then I do profusely apologise and there’s no way did I set out to break [the] order… deliberately or in any way like that”.

In respect of the alleged breaches consisting of approaching and/or obstructing vehicles directly exiting the Exclusion Zone, Ms Bolton again played to Mr Maher the video footage upon which the Claimants relied. In fairness to Mr Maher, he did not substantially dispute Ms Bolton’s suggestions to him that the footage showed him approaching and obstructing vehicles that could be seen to be exiting the Exclusion Zone and which were trying to drive off down the road. When he was re-examined, Mr Underwood QC put to Mr Maher, “you’ve accepted now you’ve seen these tracked videos a number of breaches, have you anything to say…?” Mr Maher responded, “Yes. I do truly apologise. It was not done… intentionally or deliberately, and I am really, really sorry.” Mr Underwood QC also confirmed that Mr Maher would not be making any point about the positioning of posts/bollards.

Ms Laidlaw also gave evidence. She confirmed the contents of her witness statement, dated 27 March 2022, that she had provided voluntarily. She was cross-examined by Ms Bolton. Ms Laidlaw was not present at the hearing on 10 November 2021, when the Injunction was imposed, but she confirmed that she had been informed by her solicitors that an injunction had been granted.

Ms Bolton played some video recordings in which Ms Laidlaw could be heard speaking about the Injunction.

In her evidence, Ms Laidlaw confirmed that she was talking about the effect of the Injunction. Ms Bolton asked her from where she had got information about the restrictions that had been imposed. Ms Laidlaw said that she had been at the hearing on 4 October 2021 and the injunction was being discussed and subsequently the Injunction had been put up at a board at the Wyton Site. Ms Bolton asked, “Did you read it?” and Ms Laidlaw replied, “some of it”. Ms Bolton did not pursue that answer to clarify what she had read, but asked, instead, “how else did you know of the injunction?”. Ms Laidlaw replied, “solicitors talking to other people at the camp”, and she confirmed that the solicitors to whom she was referring were the Claimants’ solicitors, Mills & Reeve. Ms Laidlaw confirmed in answer to further questions that she did not recall any solicitor talking to her about the Injunction, “it was just general knowledge that we [weren’t] to stop any cars and we [weren’t] to enter the flash zone, or flashpoint… that was my understanding”. In further answers in cross-examination, Ms Laidlaw stated that she knew that the Court had imposed an Exclusion Zone, but that she thought it was for a width of 10 metres either side of the mid-point of the gate to the Wyton Site.

Ms Bolton asked several further questions about Ms Laidlaw’s knowledge of the Injunction:

I sought to clarify when Ms Laidlaw had looked at an injunction on a noticeboard at the site. She could not recall when, but she stated that the board she had looked at had been situated to the side of the gates of the Wyton Site. As became clear later, when she was re-examined, prior to the imposition of the Injunction on 10 November 2021, the notice board upon which information and copies of relevant documents were posted was situated next to the gates to the Wyton Site. As this was within the Exclusion Zone, after the Injunction was granted, the notice board was moved to the opposite side of the road, outside the Exclusion Zone. Whatever Ms Laidlaw had seen when she said she had consulted documents on the notice board, it therefore cannot have been the Injunction. It may have been the previous interim injunction granted by Stacey J.

It appears, from Ms Laidlaw’s oral evidence and the video evidence that immediately following the grant of the Injunction, that members of the camp moved red and white temporary barriers to mark what they believed to be the width of the Exclusion Zone. Unfortunately, they were not placed at the correct point. This error may have arisen because people at the camp thought that the width was 10 metres either side of the midpoint of the gateway. It was only later that the red and white barriers were moved back correctly to mark the width of the Exclusion Zone.

In re-examination, rather like Mr Maher had done, Ms Laidlaw appeared to accept that, insofar as she had been properly served with the Injunction, she had acted in a way that was in breach of its terms, both in terms of entry into the Exclusion Zone and by obstructing vehicles. In respect of the latter, Ms Laidlaw said in her evidence that she thought the obstructing a vehicle meant that it had to come to a complete stop. She apologised for what she stated were “genuine mistakes” on her part.

At the end of the first day of the hearing, and in the light of the apparent admissions of (or at least lack of challenge to) alleged breaches of the Injunction, I asked Mr Underwood QC whether he might be able to produce what in a criminal case would be called a basis of plea; a clear statement of factual admissions that each Respondent was prepared to make.

Overnight, both Respondents took the opportunity to put forward documents headed “Basis of Admissions”.

Sensibly, in my judgment, and with an eye to the proportionality of the exercise, Ms Bolton confirmed that the admissions offered by the Respondents (in Ms Laidlaw’s case, expressly reserving her point on service of the Injunction in respect of the First Contempt Application) were acceptable to the Claimants. For my part, I am satisfied that the admissions made by the Respondent are sufficient to mean that it would be disproportionate to go on to resolve the non-admitted breaches that were alleged by the Claimants.

In view of the admissions that have been made by the Respondents, the issues that I must resolve are:

This is the main issue of dispute that I must resolve. It is a novel point that has, so far as I am aware, not been raised in any other contempt proceedings following the introduction of the new Part 81. I was satisfied that the novelty, and potential importance of the point, justified granting permission for leading counsel to be instructed for Ms Laidlaw.

The issue can be shortly stated. Do the changes to Part 81 mean that, where a solicitor has been instructed for a respondent, an injunction order must be served on those solicitors rather than on the respondent personally?

To answer this question, I shall first consider the introduction of the new CPR Part 81 before turning to consider the history of the general requirement of personal service of an injunction order.

The genesis of the new CPR Part 81

The Civil Procedure Rule Committee (“CPRC”) carried out a consultation on proposed changes to Part 81 between in March-April 2020. The then Part 81 had received criticism for unsatisfactory wording (see e.g. Solicitor General -v- Holmes [2019] 1 WLR 5253 and Attorney General -v- Yaxley-Lennon [2020] 3 All ER 477). The consultation document included the proposed revised Part 81 –together with commentary on each rule – and asked consultees to respond to several questions. The Foreword, written by Coulson LJ, the Deputy Head of Civil Justice and chair of the CPRC, included the following:

Following the consultation, the revised Part 81 was introduced from 1 October 2020 (Civil Procedure (Amendment No.3) Rules 2020 SI 2020/747). The new Part 81 was accompanied by five new forms (which replaced the existing forms): N600 Contempt Application; N601 Summons under CPR 81.6(3); N602 Warrant to Secure Attendance at Court under CPR 81.7(2); N603 Order under CPR 81.9; and N604 Warrant of Committal under CPR 81.9.

CPR 81.1 provides:

CPR 81.3 sets out how to make a contempt application and CPR 81.3(5) provides that permission is required for some types of contempt application.

CPR 81.4 is headed “Requirements of a contempt application”. CPR 81.4(1) requires that, unless the Court directs otherwise, every contempt application must be supported by evidence given by affidavit or affirmation. CPR 81.4(2) provides as follows:

In its consultation, the CPRC described CPR 81.4 as “the cornerstone” of the new Part 81:

The reference to the new form was to the new N600 which contains a series of questions designed to ensure that the Court (and the Respondent) has the necessary information relevant to the Contempt Application. The form states that the written evidence in support of the Contempt Application must be provided in the form of an affidavit or affirmation and contains, in page 3, a clear statement of the rights of the respondent. Questions 5-12 on the N600 appear under a heading “The following information is required to be included in the application pursuant to rule 81.4(2) of the Civil Procedure Rules 1998”. Question 5 requires the applicant to identify the nature of the alleged contempt (e.g. breach of an order of the Court or contempt in the face of the Court); Question 6 asks whether the application is based on an alleged breach of an Order. If so, the applicant is directed to go on to answer Question 7, which asks for details of the order that it is alleged has been breached. Question 8 asks: “Date of personal service of the order?” or “If the order was not personally served, state the date and terms of any order dispensing with personal service of the order”. Question 9 seeks confirmation of whether the order included a penal notice. Questions 10 and 11 deal with circumstances where there is an alleged breach of an undertaking, requiring details of the terms of the undertaking given, and confirmation that the person who gave the undertaking understood its terms and the consequences of a failure to comply. Question 12 requires the applicant to set out the facts alleged to constitute the contempt.

CPR 81.5 sets out the requirements for service of the contempt application and provides:

Reflecting the position as it had been under the previous rule (the old CPR 81.10(4)), the default position under the new CPR 81.5 is that the contempt application should be served personally on the defendant. However, the new rule also provided a modified form of alternative service of the contempt application where the defendant has a legal representative on the record. In the consultation, the CPRC explained:

CPR 81.6 governs cases where no contempt application is made and the Court acts under its own initiative. It provides:

CPR 81.6(4) requires that, like the contempt application, the summons be personally served upon the defendant, unless the court directs otherwise. The reference back to CPR 81.5(2) means that the modified alternative service provisions, for service of the contempt application, would also apply for service of the summons on a defendant who is legally represented. Form N601 provides the form of summons for use under CPR 81.6(3), and CPR 81.6(2) enables the Court, where appropriate, to require another party personally to serve the summons on the defendant.

The new Part 81 also has a key omission: it contains no rule expressly governing service of an injunction order. The old Part 81 – in CPR 81.5 to 81.8 – did contain such a requirement (in CPR 81.6), together with a rule permitting the Court, in an appropriate case, either to permit alternative service or to dispense with the requirement personally to serve the injunction order.

The CPRC consultation did not acknowledge or explain the removal of what might be regarded, historically, as a fundamental requirement (unless the Court orders otherwise) that the injunction be personally served before a person could be proceeded against for alleged contempt.

One of the issues that may be material is whether the requirement personally to serve the injunction order is a requirement of the substantive law of contempt or is merely a procedural requirement. If it is the former, then the effect of CPR 81.1(3) is that the requirement of personal service of an injunction order (unless the Court directs otherwise) remains and is unaffected by the other changes to Part 81. Whether the requirement of personal service is part of the substantive law requires an analysis of the historic development of the law of contempt.

The historical development of the requirement of personal service of an injunction order

There is no doubt that the species of civil contempt of court – disobedience of an order of the Court – existed long before the creation of the Supreme Court of Judicature by the Judicature Acts of 1873 and 1875, which merged the previously separate English courts of common law and equity. The 1883 Rules of the Supreme Court were the first iteration of the procedural rules of the new Supreme Court of Judicature. They contained only sparse reference to contempt. In an article in the Law Quarterly Review, “Practice in Contempt of Court Cases” (1922) 38(2) LQ Rev 185, which dealt with both civil and criminal contempt of court, the author noted of the 1883 rules:

The author also explains the distinction between the process of attachment to enforce an order requiring a person to do an act and orders for committal for breach of a prohibitory order:

The reference to Registrar Lavie’s memorandum was to the case of Evans -v- Noton [1893] 1 Ch 252, which included (as a footnote) the memorandum from the Registrar. It succinctly described the difference between attachment and committal before the Judicature Acts: “A man was committed for doing what he ought not to do, and attached for not doing what he was ordered to do.” And then explained:

In Evans -v- Noton, the Court of Appeal dismissed an appeal from a decision of Kekewich J that personal service of the notice of motion was not required before an order for attachment (as opposed to committal) could be made. The Court of Appeal expressed some discomfort at this outcome. Bowen LJ said (p.267): “I should prefer to have it enacted by the rules that leave to issue an attachment should not be given without personal service of notice on the party, or such substituted service as the Court might direct.”

The 1883 Rules of the Supreme Court appear not to have contained any provisions as to the method of service of a prohibitory injunction as a pre-requisite for seeking committal of the respondent for alleged breach. They did include a requirement – in Order 41 rule 5 – for personal service of an order requiring any person to do an act and for that order to be endorsed with a penal notice.

In the cases I have been able to find (see below), in which the issue of service of the injunction order was material, there is no reference to the procedural rules as being the source of the general requirement of personal service. In Mander -v- Falcke [1891] 3 Ch 488, the requirement that a motion to commit for alleged contempt of court must be served personally was discussed and the principle upheld. Kekewich J noted that it was not a requirement imposed by any procedural rule (pp.492-493):

In my judgment, Mander -v- Falcke establishes that the substantive requirements of the law of contempt – designed to ensure procedural fairness in an area where the liberty of the subject was at stake – were established by the common law well before efforts were made to codify them in procedural rules.

At common law, a respondent was required to have notice of the injunction order before he could be found in contempt of court for breaching it. Generally, the common law required that the injunction order be served personally on the respondent: Hyde -v- Hyde (1888) 13 PD 166, 171-172 per Cotton LJ. In respect of prohibitory injunctions, notice was capable of being demonstrated by means other than personal service of the injunction order. In Hearn -v- Tennant (1808) 14 Ves 136, Lord Eldon LC held that it was sufficient that the order was made at a hearing at which the respondents were present. In ex parte Langley(1879) 13 ChD 110, the Court accepted that a telegram, which effectively communicated the terms of an injunction order, could be sufficient notice to sustain proceedings for contempt for alleged breach, albeit on the facts of the case the Court accepted that the respondents believed that no injunction had been granted. Avery -v- Andrews (1882) 51 LJ Ch 414, is an example of the Court being satisfied, on evidence, that the respondents were in fact aware of the terms of the injunction order, notwithstanding the lack of personal service of the order. In United Telephone Company -v- Dale (1884) 25 ChD 778, the respondents actually consented to an injunction order, but contended, in contempt proceedings alleging breach, that they had never been personally served with the order. The argument was rejected as the Court was satisfied “beyond all doubt or dispute” that the defendants were aware that the injunction has been granted and also that the defendants “knew perfectly well that… they were violating the order of the Court”. Committing the defendants for their contempt of court, Pearson J observed: “What is the necessity for serving an order upon a defendant, if he knows perfectly well without that service what it is which he is bound to obey?” (p.787).

Hall & Co -v- Trigg [1897] 2 Ch 219 was a case where the defendant to a committal motion contended that there was no affidavit demonstrating service upon him of the injunction order. The order had been consented to by the defendant’s counsel, but the defendant was apparently not in court himself. Kekewich J held that the requirements of service were to be construed strictly, and observed (pp.221-222):

An example of the distinction in the service requirements between mandatory and prohibitory injunctions is Re Tuck [1906] 1 Ch 692. Again, the procedural rules did not supply the answer, and, for the purposes of identifying the “settled practice”, the Court of Appeal asked the senior registrar for a memorandum. The Court set out the relevant part, which was clearly accepted by the Court as an accurate statement of the requirements:

Further support for the proposition that, quite apart from the applicable procedural rules, there is a free-standing requirement that those intended to be bound by an injunction (and liable for punishment for breach) should be given notice of it, can be found in Iberian Trust Ltd -v- Founders Trust and Investment Co Ltd [1932] 2 KB 87.That case involving alleged default by the directors of a company to comply with an injunction order granted against the defendant company. Luxmore J noted that the procedural rules in force at the time did not require service of a copy of an injunction on a person (the director) who is personally not required by the order to do a particular act (which was the company), but nevertheless held (pp.97-98):

The RSC continued to contain a requirement – in Order 41 rule 5 – for personal service of a mandatory injunction, but not for prohibitory injunctions. However, the commentary to Order 42 rule 7, in the 1962 Annual Practice, acknowledged that such a requirement was the established practice and cited many of the cases identified in [74] above. The alternative procedure for attachment was still available under Order 44, but the commentary in the Annual Practice noted that the history of the remedies of attachment and committal was an “unhappy one” and suggested “the procedure would have been best simplified by abolishing attachment and employing committal alone by a tipstaff acting with the assistance of the police”.

Such calls for reform of the procedural rules were not new. In 1951, the Evershed Committee on Supreme Court Practice and Procedure had published its Second Interim Report in which it strongly recommended that “a complete revision of the Rules be immediately put in hand” (Cmd. 8176, para. 117). A Rule Committee of the Supreme Court was formed and charged with revising and re-writing the entire body of rules governing civil procedure in the Supreme Court. The process was undertaken in two stages. First, around half of the Rules were revised and reintroduced on 1 January 1964 by RSC (Revision) 1962 (SI 1962/2145). Second, the remaining original Rules were revised and reintroduced by RSC (Revision) 1965 (SI 1965/1776). This gave the Supreme Court, for the first time, one complete, integral body of procedural rules (“the 1965 RSC”).

The 1965 RSC came into force on 1 October 1966. Although the subject of various amendments in subsequent years, as regards contempt of court and committal proceedings, the 1965 RSC largely unchanged until the introduction of the Civil Procedure Rules in April 1999 (which continued to apply RSC Orders 45 and 52 by transitional provisions) and subsequently the introduction of a new Part 81 in 2012.

The provisions in the 1965 RSC relevant to enforcement of orders, including by committal, were contained in new Orders 45 and 52, the latter of which dealt specifically with committal. The old attachment procedure was abolished, leaving only committal. The commentary in the new Supreme Court Practice in 1967 noted, of the new Order 52 rule 1:

Order 45 rules 5 to 7 in the 1965 RSC set out a new procedural code for the enforcement of judgments and orders:

Order 65 rule 4 governed substituted service, and provided:

The new Order 45 rule 7 replaced the former Order 41 rule 5 and extended the requirement of personal service to prohibitory orders. This is the first occasion when the procedural rules required personal service of all injunction orders. But this change did not introduce a wholly new requirement. The cases that I have identified above demonstrate that this was already required by the common law. The substantial revisions to the 1965 RSC effectively codified the substantive common law requirements for enforcement of an injunction order by committal proceedings. In other respects, the procedural rules built on, and in some respects went further than, the requirements established by the common law. For example, the requirement that a penal notice be endorsed on an injunction was introduced by procedural rules. Until the revisions in the 1965 RSC, the requirement to include a penal notice on the front of the injunction order applied only to mandatory injunctions: see discussion in Sofroniou -v- Segetti [1991] FCR 332, 336 per Neill LJ and observations of Cozens-Hardy LJ in Re Tuck (at p.696).

The next case of significance is Churchman -v- Joint Shop Stewards’ Committee of the Workers of the Port of London [1972] 1 WLR 1094 (“Churchman”).That concerned an appeal against an order for committal for contempt made against three men made, not by the High Court, but by the National Industrial Relations Court (“the Industrial Court”). Under s.99(6) Industrial Relations Act 1971, the Industrial Court had “the like powers, rights and privileges and authority… as the High Court”, including like powers to punish for contempt of court. In exercising those powers, the Court of Appeal held that “any breach giving rise to punishment must be proved in the Industrial Court with the same strictness as would be required in the High Court”: 1098A per Lord Denning MR.

The Industrial Court had made an order prohibiting the respondents from preventing vehicles from entering or leaving certain premises in East London and/or making threats to blacklist the operators of lorries crossing the picket line. The respondents to the contempt proceedings had not been before the Industrial Court. The Court found (p.1098E-F):

The case is significant because the proceedings before the Industrial Court were not governed by the RSC, but by the Industrial Court Rules (SI 1971/1777). Those rules did not contain any provisions regarding failure to comply with an order made by the Industrial Court or the requirements as to service of any injunction order. As such, and in my judgment, the above statement by Lord Denning MR’s, reflects not requirements of procedural rules but fundamental principles of procedural fairness that were part of the substantive common law of contempt of court.

In R -v- City of London Magistrates’ Court ex parte Green [1997] 3 All ER 551 (“ex parte Green”), the contempt proceedings arose from alleged breaches of injunction orders made against the Serious Fraud Office in respect of computers seized following a raid on Mr Green’s premises. The order contained a prohibitory element – to restrain further “downloading” from the computers – and a mandatory element – to return the computers. The injunction orders were not directed at any named individuals. Contempt proceedings were brought against five members of the SFO, including the Director. The Court dismissed the contempt motion, holding that where an injunction order is obtained against the SFO and it is intended to enforce it against the Director, then it must be properly served on the individuals. Two of the respondents were found, on the evidence, to have known nothing about the injunctions. Giving the judgment of the Divisional Court, Scott Baker J held (p.558g-j):

The RSC were replaced with the introduction of the Civil Procedure Rules in April 1999. Some of the old RSC were retained by operation of transitional provisions. Until the introduction of Part 81 from 1 October 2012 (SI 2012/2208), RSC Orders 45 and 52 (with some modifications) continued to govern enforcement of judgments and orders and committal for contempt.

When Part 81 was introduced to the CPR from 2012, CPR 81.5-81.6 (see [64] above) contained the long-standing requirement that, unless the court ordered otherwise, an injunction order was to be served personally on the respondent. In the notes to the 2020 edition of the White Book, the editors observed (§81.5.1):

The general requirement that an injunction must be personally served on the defendant is dealt with by the leading textbooks.

In Arlidge, Eady & Smith on Contempt (5th edition, 2017, Sweet & Maxwell) (“Arlidge”), the authors refer to the requirements in two sections. First, in Chapter 12, Section I “Requirements as to service of the order said to be breached” (some footnotes converted into references in square brackets):

Similar statements of principle are set out in §§6.7 to 6.8 of Borrie & Lowe: the Law of Contempt (4th edition, 2010, Butterworths) (published at a time that proceedings for contempt were governed by the old RSC) and §§12.34 to 12.35 of Miller on Contempt of Court (4th edition, 2017, OUP). As to the requirement of personal service of the injunction order, the authors of Borrie & Lowe commented:

Finally, I would note that the requirement that sufficient notice be given to a respondent of an injunction is also consistent with jurisprudence of the European Court of Human Rights.

Article 5(1)(b) ECHR provides (so far as material):

The ECtHR has held that “the person arrested or detained must have had an opportunity to comply with [the] order and has failed to do so”: Beiere -v- Latvia (2011) App. No. 30954/05; [2013] MHLR 247 [49]. Furthermore, “a person cannot be held accountable for ‘non-compliance’ with a court order if he or she has never been informed of that order”; she must “know about the contents of the court order and [be] given [a] chance to comply with it voluntarily”: ibid [50]. In Gatt -v- Malta(2014) 58 EHRR 32, the ECtHR held at [40] (footnotes omitted):

The English Court gives effect to these principles in several ways. First there are the substantive procedural safeguards that I have identified, long recognised under the common law, and given effect to by the various procedural rules noted above. The second is that a finding of liability for contempt of court, as a result of breach of a court order, is only the first stage. The Court must then go on to consider the appropriate penalty (see [28] above).

Has the general requirement of personal service of an injunction order been removed by the changes made to Part 81?

In my judgment it has not.

The clearest indication that the CPRC had not intended to remove the ordinary requirement that an injunction order should be personally served on the defendant is contained in CPR 81.4(2)(c), which contains an express requirement that the applicant in a contempt application must provide “confirmation that [the order] was personally served, unless the court or the parties dispensed with personal service”. As recognised in the CPRC consultation, CPR 81.4 was regarded as the “cornerstone” of the new contempt provisions (see [58] above) which, together with the new form N600, sought to ensure procedural fairness, an essential element of which is the requirement to give notice of the injunction to the respondent. Inherent in the requirement to confirm that an injunction order has been personally served is the recognition that there is a requirement that it be served personally.

Further, form N600, which was intended to ensure that the relevant information was obtained and presented to the defendant to a contempt application, contains a direct question asking for confirmation of the date on which the injunction order was personally served on the defendant or provision of details of the order dispensing with personal service (see [59] above). Ms Bolton submitted that procedural forms are not part of the CPR. Whilst I broadly accept that submission, here the form was devised by the CPRC as a package of the reforms to Part 81 expressly to ensure procedural fairness (see [58] above). The N600 Form was clearly drafted on the premise that personal service of the injunction order was required unless the Court dispensed with the requirement.

I reject Ms Bolton’s argument that, by instructing solicitors, Ms Laidlaw has “dispensed” with personal service. This is a strained interpretation of CPR 81.4(2)(c). It also cannot sensibly be maintained that the requirements of 81.4(2)(c) are “wholly inapplicable” once solicitors have been instructed for a defendant. Whilst it has always been open to parties to agree a method of service of an injunction that avoids the need for personal service, Ms Laidlaw was not asked to agree to dispense with personal service of the Injunction and she did not do so. Instruction of solicitors cannot amount to a prospective dispensation of the requirement that an injunction order be personally served on a defendant, unless the Court otherwise orders.

In my judgment, and from my analysis of the historic position, the general requirement of personal service of an injunction order is a substantive requirement of the law of contempt, that existed well before it was codified in procedural rules. My conclusion is that the express requirement of personal service – contained in the former CPR 81.6 (see [64] above) – was removed because Part 81 provides the procedural rules for contempt applications (and service of an injunction order is an anterior stage), and the general requirement of personal service was recognised to be part of the substantive law. Replication of the substantive law was one of the problems with the former Part 81 that had been identified by the CPRC in its consultation (see [53] above).

Support for the conclusion that personal service of the injunction order is generally required is also provided by a comparison of the service requirements for the contempt application, under CPR 81.5, and a summons issued by the Court, under CPR 81.6. In respect of the former, the default position is that personal service is required, but a modified form of alternative service, by service on a legal representative, is permitted where one is on the record for the defendant. Service on the legal representative is subject to strict safeguards, including placing an express obligation upon the legal representative, even where no objection is taken to the method of service, to “provide to the defendant a copy of the contempt application and the evidence supporting it and take all reasonable steps to ensure that the defendant understands them”. If objection is taken to service on the legal representative, then it appears that valid service has not been effected, and the matter must then be referred to a Judge for decision. Similarly, CPR 81.6 also requires personal service of the summons on the defendant, unless the court otherwise directs. Again, if the defendant has a legal representative on the record, the modified alternative service procedure under CPR 81.5(2) can be used.

If Ms Bolton’s argument were correct, the requirements, both for service of the contempt application, under CPR 81.5, and service any summons, issued under CPR 81.6, would be more onerous than for service of the original injunction order. Further, the regime for service on a party’s legal representative of the injunction order would be subject to none of the safeguards that the CPRC considered should be imposed in relation to service of any contempt application and service of any summons. If the CPRC had intended to remove the long-standing rule that, subject to the Court making a different order, an injunction order was required to be served personally on the defendant, and instead to permit (or more accurately, to require) service instead on a solicitor, where one was instructed by the defendant, then it would be most strange not to opt for the form of modified alternative service permitted on an instructed legal representative under CPR 81.5(2). I am also satisfied that, had it really been the intention of the CPRC to prohibit personal service of an injunction order on a defendant, who had solicitors on the record, and instead to require service on those solicitors, then the CPRC would (a) have said so expressly; and (b) have consulted fully on the proposal, all the more so when they did consult on the more modest proposals for service of the contempt application upon solicitors for a defendant and that such a change would have represented a very significant departure to what the authorities show was a principle firmly embedded in the common law.

The effect of my conclusions is that personal service of an injunction order is still required by CPR 81.4(2)(c), unless the Court has permitted a different mode of service or has exceptionally dispensed with the need to serve the injunction order. As such, CPR 6.22(1) must be read as requiring personal service of an injunction order. Unless permitted by an alternative service order under CPR 6.15 and 6.27, service of an injunction order upon a legal representative who is on the record for a defendant is not good service. As a result, in this case, service of the Injunction on Cohen Cramer was not good service on Ms Laidlaw.

Should the Court grant, retrospectively, the Claimants’ Application for alternative service permitting the Injunction to be served on Ms Laidlaw by service upon her solicitors?

As noted above (see [33] above), the Claimants have issued an Application Notice seeking a retrospective order that service of the Injunction be permitted by alternative means and that service of the Injunction on Cohen Cramer “be deemed effective service” pursuant to CPR 6.15 and 6.27.

CPR 6.15 provides the alternative service regime for service of the Claim Form. In turn, CPR 6.27 applies CPR 6.15 “to any document in the proceedings as it applies to a claim form and reference to the defendant in that rule is modified accordingly”. So far as material, CPR 6.15 contains the following:

When the alternative service application is being made under sub-paragraph (2) to validate service relying upon steps already taken to bring the relevant document to the attention of the defendant, the Court must ask two questions:

As to “good reason”, Ms Bolton referred to Abela -v- Baadarani [2013] 1 WLR 2043 [33]-[41]. Mr Underwood QC did not refer to any authorities. I can take the summary of the law applying to CPR 6.15 as it applies to service of the Claim Form from Piepenbrock -v- Associated Newspapers Ltd [2020] EWHC 1708 (QB) [53]:

Not all those factors apply directly to service of documents other than the Claim Form. But in Piepenbrock, I also observed [65]:

I consider the same analysis should be employed here. Had the Claimants applied, on 10 November 2021, for an alternative service order permitting them to serve the Injunction on Ms Laidlaw by serving it on her solicitors, I am satisfied that the application would have been refused. Indeed, without evidence that an alternative service order was necessary, I would have made clear (if necessary, by inserting an express requirement into the order) that the Injunction had to be personally served on Ms Laidlaw. Of course, had the Claimants been candid about their plans for service of the Injunction (and their novel interpretation of requirements for service of an injunction order following the revised Part 81), the position they now find themselves in would probably have been avoided. But there was, and is, no evidence that Ms Laidlaw was evading service. On the contrary, the evidence demonstrates that she was regularly to be found at Camp Beagle, outside the Wyton Site, in the period immediately following the grant of the injunction (for example, see [40] above). Her unchallenged evidence was that she was well known to the Claimants as she stayed regularly at Camp Beagle. Service of the Injunction on the solicitors was simply expedient. The application for an alternative service order is now made to avoid the consequences of having wrongly interpreted the service requirements of an injunction order. That is not a ‘good reason’.

I would also have refused the alternative service application on the grounds that the Claimants have failed to demonstrate, by evidence, that the Injunction had nevertheless come to the attention of Ms Laidlaw. Whereas with a prospective alternative service application under sub-paragraph (1), the Court has to make an assessment, on the evidence, of the likelihood that the proposed alternative service method can reasonably be expected to bring the relevant document to the attention of the defendant (see the authorities cited in [26(i)] above), with a retrospective application under sub-paragraph (2) the Court can assess the evidence and determine whether it has brought the relevant document to the attention of the defendant. I can scarcely think that it would be right to make an alternative service order retrospectively unless the Court was so satisfied. It is not a matter of “deeming” the order served on the relevant defendant. The question is whether it has come to the attention of the defendant or not.

On this point, the standard of proof is the criminal standard: the evidence must make the Court sure. The evidence presented by the Claimants had not met this standard. The Claimants have not demonstrated to the required standard that Cohen Cramer provided a copy of the Injunction to Ms Laidlaw or even that she received a copy by some other means. Ms Bolton did not establish, by cross-examination or otherwise, that the solicitors had explained the terms of the injunction to Ms Laidlaw. The circumstantial evidence relied upon by the Claimants to attempt to demonstrate that Ms Laidlaw had received the Injunction Order is weak. The evidence relied upon in [40] above, is of statements made by Ms Laidlaw before the Injunction had been received by Cohen Cramer. These statements are also consistent with Ms Laidlaw’s evidence that she was generally aware – “from bits and pieces” – that an injunction had been imposed and that its “key provisions” were the imposition of an Exclusion Zone and restrictions on not stopping cars from entering or leaving the Exclusion Zone (see [42] above). Critically, however, it is clear from Ms Laidlaw’s evidence – and on this she was not challenged – that she erroneously thought (at the time of the acts alleged against her in the First Contempt Application) that the Exclusion Zone was to a width of 10 metres either side of the midpoint of the gate to the Wyton Site.

My conclusion, on the evidence, is that Ms Laidlaw had not received a copy of the Injunction, and she had not read it, carefully or at all. She knew generally of the existence of the Injunction because she was a defendant to the proceedings and had attended the hearing, on 4 October 2021, when there had been discussion of the possible imposition of in Exclusion Zone and, naturally, it was a point of discussion amongst the protestors at Camp Beagle following the grant of the Injunction on 10 November 2021, a hearing she did not attend. I am not satisfied, to the required standard, that the Injunction (or its specific restrictions) came to the attention of Ms Laidlaw as a result of the Claimants’ solicitors serving it on Cohen Cramer.

I therefore refuse the Claimants’ Application for an order, retrospectively, that service of the Injunction on Cohen Cramer is good service of the Injunction on Ms Laidlaw.

In light of the evidence about Ms Laidlaw’s knowledge of the terms of the Injunction, the Court should dispense with the requirement that the Injunction be served upon her?

The Court does have a wide discretion to dispense with defects in service of an injunction order. Ms Bolton submitted that the key question is whether injustice would be caused by so doing: Khawaja -v- Popat [2016] EWCA Civ 362 [40]. Ms Bolton also referred to the Court of Appeal decision in Davy International Ltd -v- Tazzyman[1997] 1 WLR 1256, 1262-1266 per Morritt LJ. Tazzyman is principally authority for the proposition that the power to dispense with service of an injunction order can be used retrospectively (including mandatory injunctions), but the decision contains a useful review of the authorities on when it would be just nevertheless to dispense with the requirement that an injunction order must be served. One category, which has been long recognised in respect of prohibitory injunctions, is where the Court is satisfied that the respondent knows of the terms of the injunction, for example because s/he was in Court when the injunction was granted (e.g. Turner -v- Turner referred to at 1262E and see cases discussed in [74] above). In Hill Samuel & Co Ltd -v- Littaur (referred to at 1264B), the Court of Appeal was satisfied that the defendant “knew precisely the terms of [the] order” and that it was just in the circumstances for the Judge to have dispensed with service of the injunction order.

In my judgment the authorities show that the key question, if the Court is considering retrospectively dispensing the requirement to serve an injunction order, is whether the Court is satisfied, to the criminal standard, that the material terms of the injunction order said to have been breached were effectively communicated to the defendant. The cases show that it is possible to demonstrate this by evidence in several ways, but the objective is clear, as are the statements of principle from the ECtHR (see [94]-[96] above). What is required is knowledge of the specific terms of the order, not its general character (cf. Hall & Co -v- Trigg [1897] 2 Ch 219 referred to at [75] above and Churchman referred to at [86] above).

Largely for the same reasons that I have set out above (see [113]), the evidence does not satisfy me so that I am sure that Ms Laidlaw had sufficient knowledge of the specific terms of the Injunction to justify dispensing with the ordinary requirement that she be served with the Injunction. On the contrary, and critically, the evidence demonstrates that Ms Laidlaw was, at the material time for the purposes of the First Contempt Application, mistaken about the width of the Exclusion Zone, which also affects the issue of whether she was approaching and/or obstructing vehicles that were directly entering or exiting that Zone.

In consequence, I refuse to dispense with service of the Injunction on Ms Laidlaw.

Conclusion and next steps

The effect of my decision is that, as regards Ms Laidlaw, the First Contempt Application must be dismissed.

I find that Mr Maher is guilty of contempt of court in respect of his admitted breaches (set out in [47(i)] above) and that Ms Laidlaw is guilty of contempt of court in respect of her admitted breaches (set out in [47(ii)] above). This judgment will be handed down remotely, and the Court will fix a date for further submissions as to penalty.