HS2 (HIGH SPEED TWO LIMITED) & Anor v WILLIAM HAREWOOD & Ors [2022] EWHC 2457 (KB)

[2022] EWHC 2457 (KB)KB 2022 BHM 000044
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Birmingham Civil Justice CentreDate 23 September 2022
Before
MR JUSTICE RITCHIE
Between
HS2 (HIGH SPEED TWO LIMITED) (1)ClaimantTHE SECRETARY OF STATE FOR TRANSPORT (2)ClaimantWILLIAM HAREWOOD (18)DefendantRORY HOOPER (31)DefendantELLIOTT CUCIUREAN (33)DefendantDAVID BUCHAN (61)DefendantLEANNE SWATERIDGE (62)DefendantSTEFAN WRIGHT (64)DefendantLIAM WALTERS (65)DefendantM. FRY and BRENDAN BRETT instructed by DLA PIPER Solicitors for Claimants.ADAM WAGNER instructed by ROBERT LAZAR for 33rd and 65 th Defendants.HARRIET JOHNSON instructed by ROBERT LAZAR for 18 th Defendant.ADAM GREENHALL instructed by instructed by ROBERT LAZAR for 31 st and 62 nd Defendants.Hearing Hearing dates: 25 -27 th July 2022 and 22 & 23rd September 2022
APPROVED JUDGEMENT

Ritchie J

[1]D33 asserts that he was not covered or bound by the injunction. D33 made the application at the hearing without any notice of application or pleading the case in a defence. D33 seeks a preliminary ruling in law on the facts as to whether D33 is bound by the terms of the injunction.

PROCEDURAL DEFAULT

[2]Directions were given for the conduct of the claim for committal for alleged breaches of the injunction by the Defendants on 15th June 2022. The Defendants were ordered to provide addresses for service and the names of their lawyers. The Defendants were permitted to serve evidence by 27th June 2022 and to provide bundles of authorities and evidence by 15th July 2022 and skeleton arguments by 21st July 2022.[3]D33 ignored these directions entirely, save as to the Court receiving a letter from Robert Lizar dated 21st July 2022, which was received on 25th July 2022, and, as I understand it, an electronic communication was provided by Robert Lizar as to the skeleton argument, which was delivered on time.[4]No notice of application has been issued for this preliminary issue to be heard. It was not raised at the pre-trial review. It was not pleaded in a defence. It was first raised well out of time between the Parties, five days before the hearing. This is a last minute ambush by D33 on the Claimants.[5]I reject the application on the procedural basis that D33 has not issued any application for the trial of a preliminary issue or paid the fee for such application, failed to attend the pre-trial review, failed to raise the issue in a properly pleaded defence, failed to comply with the court’s directions in relation to evidence and bundles of authorities and intentionally ambushed the Claimants.[6]The asserted delay in obtaining legal aid is not an excuse for breaching the Court’s orders because D33 could and should have instructed lawyers after the service of the injunction, which occurred soon after it was made in April 2022. He chose not to do so.[7]I shall now deal with the substance of the application in case my decision on procedural irregularity is overturned on appeal.

Pleadings and chronology of the action

[8]By a notice of application dated 25th March 2022, the Claimants sought possession of CPL and an interlocutory injunction to remove the protestors from CPL. This was part of a wider application for a track wide injunction, which was eventually heard by Knowles J and for which judgment is awaited.[9]On 11th April 2022, Cotter J granted the CPL injunction and made prohibitory and mandatory orders for the onsite protestors to leave and not to return to CPL and prohibiting new protestors from entering CPL. Cotter J also granted possession to the Claimants.[10]At that time, the relevant evidence was heard and read by the court and the issues relating to the granting of the injunction were aired. D33 was present at the hearing. It is admitted by D33 that he spoke to Cotter J in open court at the hearing.

TERMS OF THE INJUNCTION

[11]Mr. Wagner, counsel for D33, relies on the drafting of the terms of the injunction to justify the application, acknowledging the prohibitory and mandatory terms which are not in dispute. The issue raised by Mr. Wagner arises from the wording of the categories of persons bound by the injunction. By the definitions in the order made by Cotter J, the injunction binds two categories of person: i) The Cash Pit land (CPL) Defendants who are named but did not include D33. ii) Persons unknown entering or remaining at CPL, who I shall call PUs.[12]In addition and separately, the annex to the injunction sets out various named Defendants to the whole track wide action. This list is much larger than the named list for the CPL injunction.

D33’s APPLICATION

[13]D33 asserts that the injunction does not bind him because he was not a named CPL Defendant and he was not and did not become a PU despite entering CPL or remaining at CPL after the injunction was granted. He makes this submission based on the facts that(a) he was in fact named in the annex to the injunction as a Defendant to the main action but(b) not named as a CPL Defendant, so it was submitted he was not a person unknown, not a PU. On the contrary, it was submitted he was a person known, a PK, and so cannot have been a person unknown, a PU.

THE EVIDENCE

[14]I heard no live evidence from witnesses. I have read the witness statements served by the Claimants, none of which is disputed insofar as the facts are relevant to this application and I accept the contents thereof insofar as they are relevant to this application, on the criminal standard of proof. I have also read the undated witness statement of D33, which I allowed into evidence despite it being served very late, in breach of the directions I had given, and being itself undated.

Findings of fact

[15]The witness statements of the Claimants prove so that I am sure that at the time the injunction was made by Cotter J, D33 was not believed by the Claimants to be or have been at CPL. That is why he was not a CPL named Defendant in the injunction.[16]Of course, he was a potential PU in the future should he choose to step onto the CPL land and take part in the protest and obstruct HS2 in their works and do so in the knowledge of and in breach of the terms of the injunction. He could also become a PU if he was already on CPL but hiding, for instance, in a tunnel and hence be a person unknown to the Claimants in the sense that they did not know he was on or under the land.[17]D33 has a long history of fighting the Claimants over the HS2 railway. The cases are set out in the authorities bundle. I list them here: HS2 v Cuciurean [2020] EWHC 2614; HS2 v Cuciurean [2020] EWHC 2723; HS2 v Cuciurean [2021] EWCA Civ 357. DPP v Cuciurean [2022] EWHC (Admin) 736. HS2 v Cuciurean [2022] EWCA Civ 661.[18]Mr. Wagner has appeared in all of the cases for D33. D33 has been on legal aid for all of these cases and D33 has not paid the adverse costs orders made against him in full on any of them. This was confirmed to me at the hearing by counsel. It is therefore not surprising to me and was foreseeable to the Claimants that D33 was a potential PU in the terms of the injunction. However, properly and professionally, the Claimants did not name him or many of the other Defendants to the main action as a named Defendant to the CPL injunction because they did not have evidence that he was on the land at that time.[19]In his witness statement, D33 admitted that he was present in Court when the injunction was granted. He accepted that he was named as D33 in relation to the “route-wide injunction”, his words. There is a confusing paragraph numbered 4 of his witness statement. He asserts that, “The Cotter order. This specifically excludes the named Cash’s Pit Defendants”. The opposite is true. It specifically binds the Cash’s Pit Defendants. He then asserted, “I am not a Cash’s Pit Defendant”. He then went on to assert the following:
“Reading the order now, it is unclear whether it binds me. I am not a persons unknown as clearly they are aware of my identity. I am a party to the injunction.”
[20]D33 admitted in his witness statement that after the injunction was granted, he decided to resist both the order and the eviction and he admitted that he breached the prohibitory and mandatory terms imposed which ordered possession and in effect for the protestors to leave CPL. Furthermore, he accepted that he had made the decision to do so long before the injunction was granted. He explained that his refusal to leave was based on conscientious grounds relating to the environment.[21]Through his counsel and in his witness statement, D33 admitted that he was in the tunnel at CPL from 5th May 2022, at the latest, and did not leave until 25th June 2022. I note that D33 did not and does not assert:- i) At the time he was served with the injunction, as proven by the Claimants’ affidavits and accepted by D33 (by it being thrown down the entrance hole to the tunnel); or ii) At any time before he left CPL on 25th June 2022 that he was confused about the terms of the injunction or that he considered he was not bound by it or that it was ambiguous to him as to its scope. On the contrary, he decided to resist it.[22]I find as a fact that D33 believed and knew very well that he was bound by the injunction after he was served and before he left CPL. I find as a fact, based on his own witness statement, that he only raised the “I am not bound” issue after he left CPL and after he gained legal advice. I should say here that it is to D33’s credit that he has been frank about the facts. This is therefore not an application about injustice to D33 or about D33 asserting that he has been misled by any ambiguous injunction terms. It is a purely technical get out of jail free application based on legal argument constructed after the event.

The Law

[23]In Mr. Wagner’s 25 page skeleton, he raises the following submissions in relation to the issue: i) D33 is not a named CPL Defendant in the injunction and so not bound by being named. ii) Pursuant to Canada Goose v Persons Unknown [2020] EWCA Civ 303, per Sir Terence Etherton at para.82, there are three PU categories permitted in law for injunctions:(a) PU current tortfeasors (a term I will use loosely for trespassers or those in breach of an injunction as in this case) who are currently anonymous but will be identifiable later;(b) PU current tortfeasors who are anonymous and will never be identified (like a hit and run driver where no one has seen the registration plate of the car);(c) PU future tortfeasors who have not yet committed any tort but will do so in the future and will become bound by the injunction. So one can imagine a man standing on the A51 near CPL wearing a balaclava with a placard but who has not yet entered the land. Mr. Wagner describes category (c) as “newcomers”, a term which is easy to understand but does not cover the whole of the category. iii) D33 was not a PU because he had been named in the main action for the track wide injunction so was not unknown. iv) So it was submitted that because D33 was not a named CPL Defendant and cannot be a PU, he must, by definition, escape the injunction. v) Mr. Wagner warns this court that case law has made it clear that the PU jurisdiction must be exercised with care and circumspection (see GYH v Persons Unknown [2017] EWHC 3360 para.10, approved in Canada Goose at para.87). vi) In addition, the injunction hearing would and should have included an analysis of the Article 10 and Article 11 of the European Convention on Human Rights of D33 if he had been a named Defendant in the CPL injunction, whereas allowing him to be a potential PU was an easy route taken, whether by design or happenstance, by the Claimants to avoid balancing D33’s rights at the injunction hearing, thereby depriving D33 of a proper hearing before the injunction was granted. In addition, it was submitted this route avoided an analysis by Cotter J of D33’s rights under s.6 of the Human Rights Act. vii) Alternatively, Mr. Wagner submits that the injunction was ambiguous as to the scope of those it bound, so should be found not to bind D33 under the principles in Redwing v Redwing [1947] 64 RCP paras.67 and 71 and Bloomsbury v Publishing [2003] 1 WLR 1633 and Cuadrilla v Persons Unknown [2020] EWCA Civ 9 at para.59 per Leggatt LJ. viii) Mr. Wagner also relied on Bennion on Statutory Interpretation at paras.23.12 et sequentes to submit that the Latin maxim expressio unius principle applies. If the list of named CPL Defendants did not include D33, then he cannot be included and must have been excluded.

ANALYSIS

[24]I consider that the Bennion submission is misguided. The categories of Defendants for the CPL injunction were not just(1) the named CPL Defendants but included(2) an additional category for PUs who were either onsite and unidentified or would arrive onsite in the future.[25]I rule that the Latin maxim does not apply to the PUs category and is irrelevant to that category. As to the application of the maxim to the first category of named Defendants, the Latin maxim adds nothing to the facts. D33 was not named as a CPL Defendant at that time.

APPLYING THE LAW TO THE FACTS

[26]In D33’s presence, Cotter J granted possession and the interlocutory injunction governing CPL after hearing argument and taking into account the relevant convention rights. Such rights, as set out clearly by Linden J in HS2 v Maxey & Hooper [2022] EWHC 1010 at paras.45 to 46, do not prevail over private land ownership rights. There was no avoidance of the necessary balancing exercise. It was carried out.[27]It is fanciful to suggest that Cotter J should have considered the personal circumstances of all the other named Defendants in the annex on the off chance that they might choose to enter the CPL site in future and become bound by entering the PU category. A quia timet injunction is based on the factors necessary to found it at the time, not some fanciful future fears.[28]The legal framework for protests and injunctions and any committal applications arising from any breach of those injunctions was clearly set out by the Court of Appeal in HS2 v Cuciurean [2021] EWCA Civ 357 at paras.9 and 10, and in particular at 9(iv). Where the Court has conducted the balancing exercise and granted the injunction, the order must be obeyed unless it has been set aside and D33 did not apply to set it aside. Quite the opposite, he chose to resist it and now seeks to say it never applied to him.[29]D33, of all people, should understand the judgment in his own case, a case which he lost at first instance and on his appeal on liability. He succeeded in part on appeal in that the sentence was reduced. In my judgment, D33 should have been well aware of the vital importance of complying with an order of the Court having been sentenced to imprisonment for contempt of Court for three months in the case set out in the preceding paragraphs. The sentence was suspended for one year in October 2020, yet that suspended sentence did not alter his disregard for Court injunctions one jot when he arrived at CPL some months after the suspensions ended.[30]As to the alleged ambiguity, the lack of clarity in Cuadrilla v PU, para.59, related to the prohibited behaviour covered by the injunction, not the category of Defendant bound by it. In this case, D33 does not allege that at the time he was in Court making arguments to Cotter J and then listening to the making of the injunction or at the time when he was in the tunnel being served with the injunction he did not understand it to bind him. I find, so that I am sure, on his own evidence, that he thought he was bound by it and chose not to comply.[31]Turning then to the meat of the application in law, I consider that when the injunction was granted by Cotter J, he was right to identify two categories of persons to be bound: i) Those thought by the Claimants to be on the CPL by name; and ii) Those who may, in future, trespass on the CPL as “PU” newcomers or were onsite but were not yet identifiable by name: current “PUs”.[32]No one knew, at that time, who would become a newcomer. No one knew whether D33 or any other named Defendant to the main track wide claim, as distinct from those believed already to be onsite, would arrive and take up protest there. Not all the site dwellers had been identified. So I consider that it is completely clear from the wording of the injunction that anyone who was not believed to be on the site and hence was not named as a CPL Defendant would and could potentially fall into the PU category if they walked onto the site in the knowledge of the order nailed to a post at the front entrance or if they ignored the daily shouted warnings of the security guards and stayed on the site or if they broke through the fences or if they entered the tunnel.[33]In particular, those named Defendants in the main action who had been trespassers before elsewhere on HS2 land but had not yet appeared on the CPL site were bound by the PU category as soon as they entered on the site or remained there in the knowledge of the Cotter Injunction order.[34]I rule that the interpretation proposed by Mr. Wagner for the injunction on behalf of D33 is strained, subjective, inappropriate and wrong.

CONCLUSIONS

[35]I dismiss the application by D33 for an order that the injunction does not bind him. I rule that the injunction did bind D33, who was a PU under the terms of the injunction. I make this ruling on the basis that the words of the injunction, when subjected to their natural and ordinary, objective interpretation cover all persons unknown who were already at CPL at the time of the injunction and those PUs who deliberately entered or remained on the CPL after the operative date of the injunction in the knowledge of the injunction. D33 was one such person as he admits. This is a simple question of dual capacity. In his capacity as Defendant to the track wide injunction, he was named. In his capacity as potential PU to the CPL injunction, he was not named.[36]A further argument was raised by the Claimants based on how D33 would be in breach of the injunction even if he had not been bound by it directly. AG v Newspaper Publishing [1988] 1 Ch 333 was relied upon. It was submitted by the Claimants that if D33 was not a PU, then he was in breach because he: i) Carried out the acts knowing of the order; ii) Aided others to breach the order; iii) Interfered with the administration of justice.[37]I do not need to decide on these submissions in the light of my ruling on the proper interpretation of the injunction. In any event, Mr. Wagner complained that he had not had enough time to answer them properly so asked for a few days to consider them so the issues would have needed to be dealt with later in the hearing in any event. In the event he never did make any further submissions on the point. As for the ambush point, I have some sympathy but D33 ambushed the Claimants with the unpleaded defence to start the process rolling so it is perhaps unsurprising that the counter arguments were received late in the day.

CONSEQUENTIALS

[38]I did offer D33 the option to withdraw this application at the close of submissions yesterday and that offer was refused. The effect of that refusal shall be taken into account when sentencing for D33’s admitted intentional and deliberate breaches of the injunction. The Claimants shall draw up the order and submit it to the court by 10.00 a.m. tomorrow, the 27th.[39]The Claimants’ costs of D33’s failed application shall be paid by D33 on the standard basis, to be summarily assessed at the end of the hearing herein if they are not agreed before then.

DECISION 2 - SANCTION – LEANNE SWATERIDGE - UNDERTAKING

[40]Cash’s Pit land is adjoining the A51 in Swynnerton, Staffordshire. It is about four acres. It is a rectangle of forest surrounded by farmers’ fields south of Stoke-on-Trent. It also has a thin strip of land adjoining the north-side verge of the A51. It is that land which I will call “CPL” in this ruling.[41]In approximately March 2021, according to the evidence of the claimant, which as I understand it is not in dispute - I will be told as I go through this short ruling if anything I say is in dispute and I will deal with it there and then, otherwise the facts that I am going to set out here are found beyond reasonable doubt so that I am sure, but because I have not heard all of the detail of what may or may not be in dispute I am sensitive to counsel being able to stand up and say: “My Lord, no, that is not right”.[42]CPL camp was established approximately in March 2021 by protestors against HS2. A year later on 25th March 2022 by a notice of application the claimants, HS2 and the Secretary of State for Transport, applied for prohibitory and mandatory injunctions, in layman’s language those are “don’t do it” and “do it” injunctions, obviously the “it” is different, the “don’t” is “don’t go on the land” and the “do” is “get off the land” but those are the legal terms for those injunctions. They also applied for possession and declarations. “Declarations” is a legal word for “these are our rights, judge, tell the world these are our rights”. They also applied for alternative service orders. Legal fees were incurred on that because protestors were occupying CPL. The proceedings were issued against various named persons who have been involved in protests in relation to HS2 before and also persons unknown because HS2 and the Secretary of State did not know everybody who was on CPL at the time. Evidence was filed in support from Richard Jordan in a witness statement dated March 2022 and from others, but much of the background I have taken roughly from Mr Jordan’s affidavit. He was the Chief of Security at the time.[43]A history of the HS2 process was set out there which I do not need to go into in any detail. There was a broad range of groups involved, including apparently Extinction Rebellion (I do not know whether that is absolutely so) or HS2 Rebellion or Stop HS2, and there may have been others. The aim was to cause direct harm to HS2, that means financial harm, increased costs and increased delays for it, according to the groups. I am not saying that that was the aim of Flowery Zebra, who has expressed her own aim in court. There were, according to Mr Jordan, 1,007 incidents between October 2017 and December 2021 and the security costs so far, so he said, were £121 million, paid for by the taxpayer. I have divided that by 30 million taxpayers and it was a relatively small sum per taxpayer, but it is still money for every taxpayer in this country that every taxpayer is paying out.[44]There were assertions that others were involved in trespass, criminal damage and violence. That is not asserted against Flowery Zebra. Occupants of CPL came from previous camps, or some did, one a camp in Windover, another a camp in Euston Square. Previous injunctions had been granted in 2019 and 2020, various evidence was put before me of Facebook interviews, interviews with the national press and suggestions that some of the defendants, including D33, Mr Cuciurean, had been involved in tunnelling under various roads. That is what was set out in Mr Jordan’s witness statement. I am not saying I am finding that as a fact; it was an assertion which was made. I would have to hear more evidence to be able to find that beyond reasonable doubt. In any event, there were multiple incidents in Euston and in other camps. As a result, when the HS2 organisation came to seek an injunction of CPL they set out the history to show that the protests would be relatively likely to continue.[45]The order that was made by Cotter J on 11th April 2022 did have two parts to it, mandatory and prohibitory. In layman’s terms, possession was granted to HS2 of the land, that means that they can take possession of it, and the prohibitory part of the injunction prohibited the named defendants and all other unnamed defendants from entering CPL or remaining there. It also said that those defendants and unknown persons should not interfere with the works on CPL or the fencing or gating or damage the property or the belongings of the sub-contractors or climb onto vehicles and so on. It also said that the defendants and unknown persons should cease tunnelling at CPL and should not encourage or assist others tunnelling at CPL. It expressly did not prevent lawful protest and freedom of speech.[46]Service provisions were provided because it is tricky to serve those who are of no fixed abode, but that was coped with within the order by various mechanisms. The application came before me on directions and I was keen to ensure that those in court had a chance to speak and those that did turn up did have a chance to speak and I set out a timescale for the defendants and unknown persons who were at CPL to serve their evidence and file it and file their lawyers’ statements and the like before this application, for it is crucial for the courts to allow people to defend themselves. It is not our job just to steamroller people into committal proceedings. We take care to give opportunities to all those accused or otherwise who face potentially serious consequences, we give them a timescale and we give them opportunities and that is what occurred in this case. I have already granted to the defendants who are in court permission to file statements late, their solicitors have worked hard under limited financial arrangements provided by the taxpayer through Legal Aid, as have their counsel, and it seemed to me right, even though everything was done in breach of the orders that I set down, that the timescales were relaxed because those that actually left the tunnel on the 25th or the 18th had less time, as a result of their own decisions, to instruct lawyers and get their statements in.[47]However, in relation to Flowery Zebra she left on 10th May 2022 without any violence or abuse or creating difficulties for the men and women who were employed just simply to take possession of the CPL land. Flowery Zebra comes to court today showing integrity and respect in that she will stand up for herself, she has given evidence, she has answered questions honestly and she has given an apology to this court and she has given her reasons for what she does, and I will never wish to stand in the way of people expressing their views, or their right to protest or to exercise their Article 10 and 11 rights to associate and get across their views, however, not in breach of court orders. What holds society together is the criminal law and the civil law. The criminal law has its own function in its own way. In this court it is civil law and contracts do not work with builders, with care workers and others unless the court can enforce them with orders, then people know contracts work and society can keep going. If people are injured in road traffic accidents or other negligent events it is court orders that make insurance companies pay out and others realise that they need to be careful of each other. That is the purpose of civil law, and that is why I take seriously an application for committal to prison for people who have breached court orders for whatever reason.[48]I have to take into account the long established case law of the conscientious objector being treated in a slightly more lenient way than others because of the value that the courts place on freedom of speech. However, those cases also say that your conscientious objection should not be on other people’s private land, and there are various other checks and balances and so there are limits and that is what has led to the injunction order in this case and the application to commit and the legal fees involved.[49]However, coming specifically to Flowery Zebra, the breaches which she admits occurred on 10th May 2022. When the enforcement men and woman came on the site and removed those who were occupying she went without difficulty or without abuse to the men and women who were just doing their job and I take that into account. I also take into account that she admits her breaches, that she was escorted from a tree house and she admits her breaches, she was aware of the court order and she left voluntarily. These matters are important matters, for if breach of court injunctions are aggravated by violence or threats or other matters that make life more dangerous for those men and women just doing their job those aggravating matters are taken into account.[50]I take into account and find that Flowery Zebra is truly conscientious and is concerned about the environment, about the creatures that we are fortunate to live with here and the biodiversity. It does not mean she can win her argument, because we elect Parliaments to make decisions and Parliaments make decisions about infrastructure and then implement them. But I do consider that she is a conscientious objector and take that into account.[51]This brings me to the undertaking that has been negotiated between Flowery Zebra and HS2 and the Secretary of State. I commend both parties for negotiating no doubt possibly late into the night and at weekends to get this done, I am grateful to counsel and the solicitors for doing so. There is a penal notice on it, and it says you are going to get in big trouble if you do not do what you have said in your undertaking. But it is clear to me that Leanne Swateridge understands that, from what she said in the witness box, she has agreed to stay away from the HS2 land and not to enter or remain on it or obstruct it or interfere with business and I take her at her word on that. If, in fact, she does not mean what she has said to me frankly and honestly today then the next judge will probably, to use common parlance, bang her up, and that is not what the courts want to do. But I hope that she is telling me the truth and she will restrict her conscientious objections to non-violent peaceful lawful means, in which case I am sure more people will listen. I accept the undertaking; it has been signed and I also fully understand that Flowery Zebra has looked at the plans roughly and gets that it is the whole of HS2 so there is not going to be a misunderstanding in the future.[52]The application is granted on the findings that are made.

DECISION 3 - SANCTION – RORY HOOPER- UNDERTAKING

[53]What I said in relation to the background in relation to Flowery Zebra applies equally to Rory Hooper and therefore I carry that part of the judgment over and deal only with the personal breach, aggravation and mitigating factors in relation to Rory Hooper.[54]Rory comes from a family with what might be called an honourable tradition of conscientious objection, his dad being Swampy, but he is a grown up and an individual and it is a matter for him now how he lives his life. When the events took place, which he admits, which were breaches of a court order on 10th May 2022 at CPL he was only 17; he is 18 how. When the men and women came who were to regain possession of the land he climbed a tree to frustrate repossession, he put a lock-on device in a tree house and it took an hour for the member of the possession security staff to take him out of the lock-on device and then to escort him from the site. That was an intentional nuisance and it is a serious thing, for if those that go up trees fall out of trees they can be injured and it showed a little bit more than just being present on the site, so Mr Hooper is going to need to be careful going forward with that sort of behaviour for it is a potential aggravating factor.[55]He admits his breaches. He did not behave in a violent or abusive way to the men and women who were clearing the site.[56]His personal mitigation involves conscientious objection. One only has to see the direction in which he is heading as he grows into a man, environmentalism and an apprenticeship in forestry with which I wish him the greatest of luck and the greatest of success, he clearly is a conscientious objector.[57]The difficulty is he is using the wrong methods, illegal methods, particularly methods in breach of court orders, which are dangerous for him and could be dangerous for those who need to clear sites where he is occupying. However, he tells me he has no intention going forwards of continuing to breach any court order.[58]All the more important is the undertaking that he has given. He has undertaken in the form set out which has been put before me, it has a penal notice on it so he knows the effects of breaching this solemn promise to the court, and the promise is: D31 Rory Hooper accepting that he is a Cash’s Pit defendant, as defined in the order of Cotter J, accepting that he has been properly served, admitting that he entered upon Cash’s Pit Lane in breach of the order and failed to remove himself from there, he has promised, he has undertaken that he will not do any of the following: - enter or remain on HS2 land, obstruct or otherwise interfere with free movement of vehicles, equipment or persons accessing or egressing HS2 land or interfere with any fence or gate or perimeter of HS2 land where such conduct has the effect of damaging and/or delaying or injuring HS2 and the Secretary of State, their agents, servants, contractors, sub-contractors, group of companies, licensees, invitees or other employees.[59]In effect the undertaking is a promise not to muck with HS2 again on their land. He can protest all he wants elsewhere and legally is the thrust of what is being said.[60]I compliment both his barrister and Mr Fry for dealing with your case in the way that they have.[61]This time you have got away without paying any costs. Next time there will be substantial costs. I have a bill in front of me for £40,000 worth of costs that HS2 have had to run up. I will be paying that, albeit a small part, because I pay tax, and so will every other taxpayer in this country be paying towards the costs that you have run up, and that is one of the adverse effects of breaching court orders. Despite that, the undertaking is acceptable and I do accept it and there will be no costs order. DECISION 4 - SERVICE OF DOCUMENTS AND BREACH DAVID BUCHAN - SERVICE

DECISION 4 - SERVICE OF DOCUMENTS AND BREACH

[62]The first step that I need to take in relation to the Claimants’ claim for committal for breach of the Cotter injunction dated April 2022 in relation to David Buchan, aka David Holliday, Defendant 61 to the claim, is to consider whether David Buchan has been served with two bundles of documents. The first is the Cotter order and ancillary documents and the second is the application to commit him for contempt.

EVIDENCE

[63]Factually, as to the background, Mr. Buchan has taken no part in these proceedings, has failed to instruct lawyers, has failed to attend. However, I have before me considerable evidence to show that he was onsite at CPL in April and May of 2022, leaving on 28th May 2022 when he was arrested and detained.[64]Those dates for his presence onsite are evidenced by the affidavits of Mr. Dobson and Mr. Harrison and are summarised in the Statement of Claim at paras.40 to 45. In slightly more detail, they assert that on 20th April 2022, Buchan entered CPL and stayed after being warned verbally of the injunction. On 2nd May 2022, he entered CPL and refused to leave despite warnings of the injunction. On 10th May 2022, he was remaining on CPL until he was escorted off by security and on 28th May 2022, he entered CPL and was arrested and was detained.[65]I have carefully been taken to and have carefully read the evidence in relation to service of the Cotter order, namely the injunction, in the affidavit of Mr. Harrison dated 13th April 2022. It is clear that a huge number of copies of the Cotter order and evidence in support thereof were distributed to the CPL site, put into the CPL post box, which was constructed by the protesters at the entrance and on various wooden posts, north, south, east and west of the site.[66]In addition, in accordance with the affidavit of Ms. Dilcock dated 9th June 2022, the documents were posted on the HS2 website. All of these methods were permitted for service on David Buchan by the Cotter order.[67]I also take into account the evidence of Dobson in the affidavit before me in the hearing bundle p.A077 that many oral warnings were given to Buchan and also in the affidavit of Mr. Harrison in hearing bundle A41 (that affidavit being 9th June 2022) that on 20th April, as I have summarised above, Mr. Buchan was seen and issued with a warning when he was in the vicinity of structure 1.

FINDING

[68]Therefore, I find such that I am sure, that Mr. Buchan was aware of and was served with the Cotter order and the ancillary documents in accordance with the Cotter order and I accept the certificate of service.[69]The second matter is whether Mr. Buchan was served with the application to commit him to prison for contempt. I accept the certificate of service at bundle A516 of Robert Shaw dated 20th June 2022. This method of service was required because Buchan had left CPL and had avoided providing any email address, postal address or other contact address, so the Claimants had researched and found a Facebook address for him, set up their own Facebook address and messaged him at his Facebook address in his aka David Holliday and that was a permitted method of service by Cotter J.[70]I accept that those documents were served by Facebook Messenger to Buchan’s Facebook Messenger account and then take into account the most recent witness statement of Robert Shaw dated 23rd July 2022, which shows a receipt of a cheeky Facebook message back from Buchan’s Facebook account, namely a thumbs up and a “LOL”. I have been given two interpretations of “LOL”, neither of which are relevant to my decision to accept the evidence of Mr. Shaw that the alternative service provisions set out in the directions order that I made on 15th June 2022 and the injunction order that Cotter J made in April 2022 have been complied with and I am sure that service has properly been effected on Mr. Buchan. (For proceedings after judgment see separate transcript) DAVID BUCHAN - BREACH[71]In relation to the claim against David Buchan, the next part of this judgment deals with the evidence of breach. I refer back to the earlier part of this judgment which dealt with evidence of service. In relation to the allegations of breach, the Statement of Claim sets out at paras.40 to 45 the following allegations against Buchan: i) That he wilfully breached para.4A of the Cotter order on Wednesday, 20th April 2022 by entering and remaining on CPL. D61 was seen next to and entering a large wooden structure that had been erected by activists on CPL. D61 was informed by the First Claimant’s security contractors that he was on land subject to a High Court injunction and refused to leave CPL. ii) D61 wilfully breached para.4A of the Cotter order on Wednesday, 20th April 2022 by entering and remaining on the CPL. He had left the CPL land to use a latrine situated to the west and re-entered at 4.08 p.m. iii) On 26th April 2022, D61 wilfully breached para.4A of the Cotter order by entering onto CPL and was seen by the First Claimant’s security contractors and was informed that he was on the land subject to a High Court injunction and refused to leave. iv) On 10th May, when the Claimant’s security staff sought to clear the site of protestors having obtained a warrant for possession, D61 remained on the CPL and was found by the security contractors there and was walked off the site. v) On 28th May, Buchan entered the site again from the south, was intercepted, detained and arrested by the police.[72]I find, so that I am sure to the criminal standard, that those events occurred as set out in the affidavits of Dobson and Harrison but I also say, in relation to those breaches, that it is clear to me from this evidence that David Buchan, aka David Holliday, was non-violent, non-rude and simply was non-compliant with the court order, not going any further than that. So the breach has been established to the criminal standard and I so find. (For proceedings after judgment see separate transcript) STEFAN WRIGHT - SERVICE[73]In this part of my stop and start judgment, I am dealing with four matters. The first is proof of service of the directions order on Stefan Wright, D61.[74]I have read and considered the evidence of Karl Harrison in his certificates of service dated 15th June 2022 with the photos therein that show him putting down the entrance to the tunnel for the attention of William Harewood, Elliott Cuciurean, Liam Walters and Stefan Wright the documentation in relation to today’s hearing and the directions order.[75]So then going back in time to proof of service of the Cotter order, I accept the certificate of service dated 13th April 2022 from Karl Harrison about his multiple methods of serving the Cotter order and the ancillary documents on the CPL site at the points of the compass, at the entrance and in the post box at the site. I also accept the evidence in Dobson’s first affidavit of service of these documents at the relevant website set out and permitted by the Cotter order and I accept ancillary to this that warnings, as set out in Dobson’s first affidavit, were shouted down the tunnels and to other CPL residents over the dates set out in Dobson 1.[76]Therefore I am satisfied, so that I am sure, that the Cotter order and ancillary documents were served on Stefan Wright.[77]Next, turning to service of the committal application pursuant to my own order dated 15th June of this year, four copies of the committal application and ancillary evidence were lowered down into the entrance of the tunnel, which was a permitted method of alternative service on the Defendants as evidenced by the certificate of service of Karl Harrison dated 9th June 2022 and, if I remember correctly, I have already found that I was satisfied that that service was good on other tunnel occupants and so all I am doing really is repeating a finding that I made earlier.

FINDINGS

[78]So, therefore, in relation to Stefan Wright, I am satisfied, so that I am sure, that the Cotter order, the committal application, all ancillary documents to both of those and the directions order that I made which set out the date of this hearing in it were served on Stefan Wright, who, as far as the Claimants were aware, and the Court was aware, at all times, was down the CPL tunnel. If he was not down the tunnel, then the various other methods of service that were permitted by putting up copies of these documents on various wooden posts north, south, east and west and in the postal box would have been sufficient to come to his (For proceedings after judgment see separate transcript)

STEFAN WRIGHT - BREACH

[79]As a result of the evidence that I have read from Dobson in affidavit 1 and Dobson in affidavit 2 in the hearing bundle at A089 and A318, the second affidavit being sworn on 11th July 2022, I find and am sure that Stefan Wright, (who seems to have no aka) breached the Cotter order in the ways set out in the Statement of Claim at paras.49, 50, 51 and 52 and that the breach under para.51 continued until 25th June 2022, when the great escape occurred, when he and others left through a tight wormhole tunnel under the fence at CPL and ran off into the night. That is a total of 46 days.[80]I do mention here, although it is more a matter for sentence, that there is no evidence from the Claimants of violence by Stefan Wright to any of their staff or subcontractors or indeed in any way threatening or rudeness and I leave over any other matters in relation to danger, harm or risk as not dealt with in this part of the judgment but to be dealt with in relation to sentence if they are relevant and if they are proven so that I am sure. (For proceedings after judgment see separate transcript) WILLIAM HAREWOOD - BREACH[81]In relation to William Harewood, aka Satchel, the Eighteenth Defendant, the Claimants alleged in paras.23 to 30 of the Statement of Claim dated 8th June 2022 as follows, that:
“Harewood wilfully breached on each day from 10th May 2022 to the date of this Statement of Case and is wilfully in continuing breach of para.4A of the Cotter order by remaining on the CPL and being present on the CPL and failing to remove himself from the land.”
[82]At 24:
“D18 wilfully breached on each day from 10th May 2022 to the date of this Statement of Case and is wilfully in continuing breach of para.4B(i) of the Cotter order by being present on CPL with the effect of delaying and hindering the First Claimant by instructing and impeding the activities undertaken by the First Claimant’s contractors and subcontractors to gain vacant possession of the CPL in connection with the HS2 scheme.”
[83]By para.25, it is alleged: “D18 wilfully breached on each day from 10th May to the date of this Statement of Case and is wilfully in continuing breach of para.4C(i) of the Cotter order by failing immediately to leave the tunnel which he occupies”.[84]By para.26:
“D18 wilfully breached para.4C(i) of the Cotter order on 10th May by re-entering the tunnel at 18.49 hours having left the tunnel shortly before.”
[85]Paragraph 27:
“D18 wilfully breached para.4C(i) of the Cotter order on 10th May 2022 by re-entering the tunnel at 19.38 having left the tunnel shortly before.”
[86]Paragraph 28:
“D18 wilfully breached para.4B(ii) of the Cotter order on 10th May 2022 at 19.51 by turning a surveillance camera installed by the Claimant’s contractors away from the mouth of the tunnel, preventing them from monitoring the activities of those within the tunnel. This action constitutes an interference with activity on the CPL with the effect of delaying and hindering the First Claimant by interfering with the activities undertaken by the Claimant’s contractors and subcontractors to gain vacant possession of the CPL in connection with the HS2 scheme.”
[87]Paragraph 29:
“D18 wilfully breached para.4C(i) of the Cotter order on the night of 10th May 2022 or morning of 11th May by re-entering the tunnel after having moved the surveillance camera.”
Details of these breaches are set out in paras.58 to 74 of Dobson 1.

FINDINGS

[88]Having read the witness statements filed and served by the Claimants, I find the breaches proved and I also note that William Harewood admits the breaches in the Statement of Claim and therefore my finding beyond reasonable doubt matches the admissions that William Harewood has made.[89]The pleaded allegations are all a bit legal so I shall put this in plain language: it was being a tunneller and staying in the tunnel until the later evidence of Mr. Shaw informs this court that William Harewood was part of the “great escape” on 25th June 2022 via the wormhole, under the fence and out into the fields. So it was a 46 day stay in the tunnel on the HS2 land which is really the root of the breach that William Harewood has been found to have committed. Popping out and tweaking the CCTV is a nuisance but by no means has the evidence shown that D18 has been violent or rude or threatening to the HS2 staff or subcontractors.[90]I am, however, concerned about the activities by unknown persons who were involved in tunnelling in putting concrete caps with bits of metal or glass into tunnel entrances. I am not holding that against any of the Defendants or William Harewood here because I do not have direct evidence to do so but if I had been given such direct evidence, if that had been caught on camera, I would have taken that very seriously indeed as a step away from protecting the environment and a step towards injuring human beings or animals or anything else, which would not be acceptable to me in any way, manner or form, but, in this case, these breaches that are proven are breaches of occupation in a particular way and those are the breaches in relation to Harewood that I find proven.[91]I do not need to deal with risk and other matters. They will be dealt with once I have heard submissions from the Defendants’ counsel and from Mr. Fry, so risk and harm and other matters will be dealt with at that stage. So in relation to Satchel, breaches admitted and proof.

ELLIOTT CUCIUREAN - BREACH

[92]In relation to “Elliott Cuciurean, the Statement of Claim in the application to commit for contempt of court deals with the asserted breaches at paras.35 to 39. Paragraph 35 states:
“D33 wilfully breached on each day from 10th May to the date of this Statement of Case and is wilfully in continuing breach of para.4A of the Cotter order by remaining on the CPL and being present on the CPL and failing to remove himself from the land.”
[93]Paragraph 36 states the allegation that:
“D33 wilfully breached on each day from 10th May to the date of this Statement of Case and is wilfully in continuing breach of para.4B(i) of the Cotter order by being present on the CPL within a tunnel, with the effect of delaying and hindering the First Claimant by obstructing and impeding the activities undertaken by the First Claimant’s contractors and subcontractors to gain vacant possession of the CPL in connection with the HS2 scheme.”
[94]By para.37, it is alleged:
“D33 wilfully breached on each day from 10th May 2022 to the date of this Statement of Case and is wilfully in continuing breach of para.4C(i) of the Cotter order by failing immediately to leave the tunnel which he occupied.”
[95]By para.38 of the Statement of Claim, it is alleged:
“D33 wilfully breached para.4C(i) of the Cotter order on 10th May 2022 having left the tunnel at approximately 19.38 hours. He re-entered the tunnel at some point that same evening or on the morning of 11th May after D18 moved the surveillance camera.”
Details of the breaches are set out in the various paragraphs of the affidavit of Dobson 1.[96]In addition, I have seen the additional evidence of Dobson from the affidavit or witness statement dated 11th July 2022, which states that Elliott Cuciurean was one of the “great escapees” through the wormhole on 25th June 2022, therefore he also was in breach of the Cotter order for a total of 46 days.

FINDINGS

[97]I find so that I am sure that the pleaded allegations are proven.[98]I have not been taken to any evidence that would suggest violence or threatening behaviour by Mr. Cuciurean and so it is, if you will say, direct action by passive occupation rather than violent or threatening active occupation and that is the nature of the breaches that I find to have occurred beyond reasonable doubt and those breaches now, in accordance with Mr. Cuciurean’s signed and dated witness statement, are admitted by Mr. Cuciurean, so he has not put the Claimants to proof of those.

LIAM WALTERS - BREACH

[99]I have dealt with Rory Hooper and Leanne Swateridge by undertakings.[100]I have made findings of service and breach in relation to William Harewood, David Buchan, Stefan Wright and Elliott Cuciurean. So the final Defendant is D65, Liam Walters. Liam Walters does not benefit from an aka that I am aware of (unless he is one of the Ivans but that has not yet been made clear to me). In any event, Liam Walters is the 65th Defendant in these proceedings.[101]The Statement of Claim dated 8th June 2022 sets out allegations against D65 at paras.54 to 59. They are as follows. It is alleged that Liam Walters, in para.54: “At the date of this statement, D65 is not a named Defendant. He is bound by the terms of the Cotter order as he falls within the class of persons covered by the unknown persons provision”.[102]Paragraph 55:
“Having entered and remained on the CPL without the consent of the Claimants, D65 wilfully breached on each day from 10th May 2022 to the date of this Statement of Case and is wilfully in continuing breach of para.4A of the Cotter order by remaining on the CPL and being present on the CPL and failing to remove himself from the land.”
[103]Paragraph 56:
“D65 wilfully breached one each day from 10th May 2022 to the date of this Statement of Case and is wilfully continuing in breach of para.4B(i) of the Cotter order by being present on the CPL land within a tunnel with the effect of delaying and hindering the First Claimant by obstructing and impeding the activities undertaken by the First Claimant’s contractors and subcontractors to gain vacant possession of the CPL in connection with the HS2 scheme.”
[104]Paragraph 57:
“D65 wilfully breached on each day from 10th May 2022 to the date of this Statement of Case and is wilfully in continuing breach of para.4C(i) of the Cotter order by failing immediately to leave the tunnel which he occupied.”
[105]Paragraph 58:
“D65 wilfully breached para.4C(i) of the Cotter order on 10th May 2022 having left the tunnel at approximately 19.28 hours. He re-entered the tunnel at some point that same evening or on the morning of 11th May after D18 moved the surveillance camera.”

FINDINGS

[106]The evidence in support of the acts of contempt are set out in the affidavit of Dobson called affidavit Dobson 1 and the affidavit of Dobson 2 dated 11th July 2022. I accept the contents of both so that I am sure that Walters left the tunnel on 18th June 2022 and so he is a 39-day dweller as opposed to the 46-day dwellers in the other cases.[107]He has provided a signed and dated witness statement now in which he admits the breaches set out in the Statement of Claim and therefore I have no difficulty finding, so that I am sure, that those breaches are proven not only by the admission but also by the evidence that has been called before me.[108]It is likewise not alleged against Liam Walters that he was violent or threatened violence during his time and hence was an active protestor but not a threatening or violent protestor. (For proceedings after judgment see separate transcript) END

Cited in 2 later judgments