“Case Study 1: Preston New Road, Cuadrilla Resources Ltd. Cuadrilla obtained planning permission on 16 1 16. From 14 8 14 to date there have been numerous serious instances of trespass resulting in court proceedings for possession and injunctive relief. Case Study 2: Leith Hill, Europa Oil & Gas (UK) Ltd. Europa was granted planning permission in August 2015. On about 29 10 16, prior to works commencing, protestors moved on to the site and established a “protection camp”
“In the period January-August 2017, at Cuadrilla’s Preston New Road site, protestors locked themselves to fencing outside the site entrance; obstructed a lorry; congregated on the public highway, forcing its closure; and engaged in numerous “lockon” protests outside the site entrance. D6 played a key role in these protests. The protestors continue to congregate at the site on a daily basis with the purpose of blocking access, resulting in a number of road closures over the past months. On 6 2 17, protestors blocked access to a quarry operated by a supplier to the shale gas industry, Armstrong Aggregates, resulting in the termination of the company’s supply to Cuadrilla. On 10 3 17, AE Yates, a supplier of Cuadrilla, was subjected to a “slow walk” on the public highway outside the entrance of its depot in Bolton. The company suffered a “lock on” protest at the entrance to the depot on 3 4 17. On 27 3 17, protestors targeted a supplier of the shale gas industry, Tarmac and Aggregate Industries, with an 11-hour blockade. On 30 3 17, anti-hydraulic fracturing protestors blocked the entrance to Eddie Stobart’s Orford Depot. They engaged in slow walking outside the depot on 3 4 17. On 6 4 17, a supplier of Cuadrilla, Lomas Distribution, was subjected to a “slow walk”, leading to protestors being arrested on suspicion of an offence undersection 137 of the Highways Act 1980 . On25 April 2017 , a number of protestors blockaded access to a site operated by Third Energy UK Gas Ltd near Kirby Misperton, North Yorkshire. This protest camp is situated on private farmland off a main road, being the main road via which access is afforded to Third Energy’s site. The ongoing protestor activity has escalated since the12 September 2017 hearing. The recent activity (covering the period up to11 October 2017 ) is set out in detail in the seventh witness statement of Mr Talfan Davies.”
“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.”
“The law relating to the user of highways is in truth the law of give and take. Those who use them must in doing so have reasonable regard to the convenience and comfort of others, and must not themselves expect a degree of convenience and comfort only obtainable by disregarding that of other people. They must expect to be obstructed occasionally. It is the price they pay for the privilege of obstructing others.”
“(a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons; and (c) by which he intends to persuade any person (whether or not those mentioned above) (i) not to do something that he is entitled to or required to do; or (ii) to do something that he is not under any obligation to do.”
“(a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; or (c) that in the particular circumstances the pursuit of the course was reasonable”
“references to harassing a person include alarming the person or causing the person distress”
“Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. In most cases courts should have little difficulty in applying the “close connection” test. Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2 .”
“If this was the aim, it is easy to see why the definition of harassment was left deliberately wide and open-ended. It does require a course of conduct, but this can be shown by conduct on at least two occasions (or since 2005 by conduct on one occasion to each of two or more people): section 7(3) . All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2) . But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.”
“a ‘course of conduct’ must involve ... (b) in the case of conduct in relation to two or more persons, conduct on at least one occasion in relation to each of those persons”
“[a] person’s conduct on any occasion shall be taken, if aided, abetted, counselled or procured by another – (a) to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and (b). to be conduct in relation to which the other’s knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.”
“The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. For the reasons I set out below in my judgment it should. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass. Subject to these qualifications, therefore, there would be a public right of peaceful assembly on the public highway.”
“I am not persuaded that in any case where there is a peaceful non-obstructive assembly it will necessarily exceed the public's right of access to the highway. The question then is, as in this kind of case it may often turn out to be, whether on the facts here the limit was passed and the exceeding of it established. The test then is not one which can be defined in general terms but has to depend upon the circumstances as a matter of degree. It requires a careful assessment of the nature and extent of the activity in question. If the purpose of the activity becomes the predominant purpose of the occupation of the highway, or if the occupation becomes more than reasonably transitional in terms of either time or space, then it may come to exceed the right to use the highway.”
“(1) A person is guilty of an offence if he intentionally and without lawful authority or reasonable cause - (a) causes anything to be on or over a road, or (b) interferes with a motor vehicle, trailer or cycle, or (c) interferes (directly or indirectly) with traffic equipment, in such circumstances that it would be obvious to a reasonable person that to do so would be dangerous. (2) In subsection (1) above ‘dangerous’ refers to danger either of injury to any person while on or near a road, or of serious damage to property on or near a road; and in determining for the purposes of that subsection what would be obvious to a reasonable person in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.”
“(1). Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. … (2). The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“(1). Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. (2). No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the exercise of these rights by members of the armed forced, or the police, or of the administration of the State.”
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrong-headed and misconceived. Sometimes they betray a kind of arrogance: an arrogance which assumes that spreading the word is always more important than the mess which, often literally, the exercise leaves behind. In that case, firm but balanced regulation may be well justified. In this case there is no substantial factor of that kind. As for the rest, whether or not the AWPC's cause is wrong-headed or misconceived is neither here nor there, and if their activities are inconvenient or tiresome, the Secretary of State's shoulders are surely broad enough to cope.”
“As the judge recognised, the answer to the question which he identified at the start of his judgment is inevitably fact sensitive, and will normally depend on a number of factors. In our view, those factors include (but are not limited to) the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters 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.”
“ … we accept that it can be appropriate to take into account the general character of the views whose expression the Convention is being invoked to protect. For instance, political and economic views are at the top end of the scale, and pornography and vapid tittle-tattle is towards the bottom. In this case the judge accepted that the topics of concern to the Occupy Movement were “of very great political importance”: para 155. In our view, that was something which could fairly be taken into account. However, it cannot be a factor which trumps all others, and indeed it is unlikely to be a particularly weighty factor: otherwise judges would find themselves according greater protection to views which they think important, or with which they agree.”
“12(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied— (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”
“29 The court has an undoubted jurisdiction to grant injunctive relief on a quia timet basis when that is necessary in order to prevent a threatened or apprehended act of nuisance. But because this kind of relief ordinarily involves an interference with the rights and property of the defendant and may (as in this case) take a mandatory form requiring positive action and expenditure, the practice of the court has necessarily been to proceed with caution and to require to be satisfied that the risk of actual damage occurring is both imminent and real. That is particularly so when, as in this case, the injunction sought is a permanent injunction at trial rather than an interlocutory order granted on American Cyanamid principles having regard to the balance of convenience. A permanent injunction can only be granted if the claimant has proved at the trial that there will be an actual infringement of his rights unless the injunction is granted.”
“Those submissions confuse the question of whether taking over the bank's property is a more convenient or even more effective means of the Occupiers expressing their views with the question whether if the bank, or, more accurately, its subsidiary, recovered possession, the Occupiers would be prevented from exercising any effective exercise of their freedom to express their views so that, in the words of the Strasbourg Court, the essence of their freedom would be destroyed. When the correct question is asked, it admits of only one answer. The individuals or groups currently in the Property can manifestly communicate their views about waste of resources or the practices of one or more banks without being in occupation of this building complex. No one is seeking to prevent them from coming together to campaign or promulgate those views. I need hardly add that the fact that the occupation gives them a valuable platform for publicity cannot in itself provide a basis for overriding the respondent's own right as regards its property.”
“(1) If the court finds that there have been breaches of the duty of full and fair disclosure on the ex parte application, the general rule is that it should discharge the order obtained in breach and refuse to renew the order until trial. (2) Notwithstanding that general rule, the court has jurisdiction to continue or re-grant the order. (3) That jurisdiction should be exercised sparingly, and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure. (4) The Court should assess the degree and extent of the culpability with regard to non-disclosure. It is relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge of the order. Equally, there is no general rule that a deliberate breach will attract that sanction. (5) The Court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court. In making this assessment, the fact that the judge might have made the order anyway is of little if any importance. (6) The Court can weigh the merits of the plaintiff’s claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff’s case is allowed to undermine the policy objective of the principle. (7) The application of the principle should not be carried to extreme lengths or be allowed to become the instrument of injustice. (8) The jurisdiction is penal in nature and the court should therefore have regard to the proportionality between the punishment and the offence. (9) There are no hard and fast rulesas to whether the discretion to continue or re-grant the order should be exercised, and the court should take into account all relevant circumstances.”
“103 I regard that as a helpful review of the applicable principles, subject to the overriding principle, reflected in proposition (9), that the question of whether, in the absence of full and fair disclosure, an order should be set aside and, if so, whether it should be renewed either in the same or in an altered form, is pre-eminently a matter for the court’s discretion, to which (as Mr Boyle observes at [180]) the facts (if they be such) that the non-disclosure was innocent and that an injunction or other order could properly have been granted if the relevant facts had been disclosed, are relevant. In exercising that discretion the court, like Janus, looks both backwards and forwards. 104 The court will look back at what has happened and examine whether, and if so, to what extent, it was not fully informed, and why, in order to decide what sanction to impose in consequence. The obligation of full disclosure, an obligation owed to the court itself, exists in order to secure the integrity of the court’s process and to protect the interests of those potentially affected by whatever order the court is invited to make. The court’s ability to set its order aside, and to refuse to renew it, is the sanction by which that obligation is enforced and others are deterred from breaking it. Such is the importance of the duty that, in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given him. This is particularly so in the case of freezing and seizure orders. 105 As to the future, the court may well be faced with a situation in which, in the light of all the material to hand after the non-disclosure has become apparent, there remains a case, possibly a strong case, for continuing or re-granting the relief sought. Whilst a strong case can never justify non disclosure, the court will not be blind to the fact that a refusal to continue or renew an order may work a real injustice, which it may wish to avoid. 106 As with all discretionary considerations, much depends on the facts. The more serious or culpable the non-disclosure, the more likely the court is to set its order aside and not renew it, however prejudicial the consequences. The stronger the case for the order sought and the less serious or culpable the nondisclosure, the more likely it is that the court may be persuaded to continue or re-grant the order originally obtained. In complicated cases it may be just to allow some margin of error. It is often easier to spot what should have been disclosed in retrospect, and after argument from those alleging nondisclosure, than it was at the time when the question of disclosure first arose.”
“The Relevance of the Defendants’ Convention Rights to the Applicable Test 23. For the purpose of the present application only, Cs accept that the court must be satisfied that any relief granted by it would not amount to a disproportionate interference with Ds’ Convention rights under Articles 10 and 11 of the European Convention, when balanced against Cs’ rights to peaceful enjoyment of their possessions (including their real property, personal property and corporate goodwill) under Article 1 of Protocol 1 of the European Convention (“A1P1”). These rights are all qualified rights. 24. A corporate entity’s goodwill and intangible assets are possessions which qualify for protection under A1P1, albeit that an entity’s expected or anticipated future income is not a possession: Clayton and Tomlinson, The Law of Human Rights (2nd Ed, 2009) at 18.22, citing R (Countryside Alliance) v Attorney-General[2008] 1 AC 719 ;[2007] UKHL 52 at 747CG ([22]), per Lord Bingham. 25. Cs’ case is that Ds’ have no defence to this application based on their Convention rights, as: a. in the balancing exercise between Cs’ A1P1 rights and Ds’ Convention rights, Article 10 has no presumptive priority over other qualified Convention rights, including A1P1: Thames Cleaning and Support Services Ltd v United Voices of the World[2016] EWHC 1310 (QB) at [35], per Warby J. b. when a private landowner’s A1P1 rights are to be balanced against protesters’ rights under Articles 10 and 11 of the European Convention, the latter will only be capable of altering the position which would obtain under domestic law where the failure to restrict the landowner’s property rights would prevent any effective exercise of freedom of expression, or where the essence of the right would be destroyed: Appleby v United Kingdom(2003) 37 EHRR 38 at [47], applied in Sun Street Property Ltd v Persons Unknown[2011] EWHC 3432 at [32][33], per Roth J; and Manchester Ship Canal Developments Ltd v Persons Unknown[2014] EWHC 646 (Ch) at [37], per HHJ Pelling QC. c. there can be no argument that the injunction sought by Cs would have this effect, as Cs seek no more than to prevent Ds engaging in activities which are unlawful under domestic law.”
“35 Here arises the practical difficulty of devising a suitable form of words. An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute. An order expressed to restrain publication of "confidential information" or "information whose disclosure risks damaging national security" would be undesirable for this reason.”