Sheringham Shoal and Dudgeon Extensions Projco Limited v Persons Unknown & Ors [2026] EWHC 1515 (KB)

[2026] EWHC 1515 (KB)Case No KB-2026-002036
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/06/2026
Before
DEPUTY HIGH COURT JUDGE AIDAN EARDLEY KC
Between
SHERINGHAM SHOAL AND DUDGEONApplicantEXTENSIONS PROJCO LIMITEDApplicantPERSONS UNKNOWN (BEING THE PERSONS WITH AN INTEREST IN CAUSING OR PERMITTING FISHING GEAR OR OTHER RELATED EQUIPMENT OR ANY OTHER OBSTRUCTIONS TO BE IN THE AREA OUTLINED IN BLACK AND SHADED GREY AND IN THE AREA SHADED BLUE ON THE ENCLOSED 2026 NEARSHORE GEOPHYSICAL SURVEY PLAN (THE “SURVEY AREA”)RespondentNORTH NORFOLK FISHERMEN’S SOCIETYRespondentJOHN DAVIESRespondentJ&S SHELFISH LTDRespondentJAMES CHAMBERSRespondentCALLUM CHAMBERSRespondentMR T MORSHEAD KC instructed by (Burges Salmon LLP) appeared for ClaimantThe Defendants were not present or representedHearing Hearing Date: 17 June 2026
APPROVED JUDGMENT
This judgment was handed down remotely at 10.00am on Friday 19 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.Aidan Eardley KC:Introduction
[1]This is an application for an injunction, the effect of which will be to require a defined area of coastal waters (the Survey Area) to be kept free of fishing gear and other obstructions for a defined period (the Relevant Period) in order to enable the Claimant to carry out safely surveys of the seabed which it is required to undertake.[2]At the end of a hearing on 17 June 2026 I granted an injunction, in slightly different terms from those proposed by the Claimant, until a return date hearing on 1 July 2026. These are my reasons. The Claimant[3]The Claimant is responsible for the construction and future operation of the “Dudgeon Extension” and “Sheringham Shoal Extension” off the Norfolk Coast (the Project). The Claimant is also the “Responsible Tenant” under an agreement for lease granted by the Crown Estate in respect of the placing of “transmission assets” (cables etc) on the seabed (the Crown Estate being the owner and landlord of the relevant part of the seabed) (the AfL). The AfL permits the Claimant to carry out surveys and other investigations on the seabed. The Defendants[4]The First Defendant, as the description indicates, comprises those individuals who are responsible for fishing gear (etc) that is presently situated within the Survey Area, but whose names are not known to the Claimant, and anyone else who might bring fishing gear or other obstructions into the Survey Area during the Relevant Period.[5]The Second Defendant is, as I understand it, an unincorporated association which represents the interests of fishermen on the North Norfolk Coast. The Third Defendant, John Davies, is the Society’s chairman.[6]The Fourth, Fifth and Sixth Defendants are the owners/operators of a vessel which fishes in the Survey Area and who have come forward and identified themselves upon learning of the Claimant’s application for an injunction. As I explain below, I have agreed to join them as Defendants. Procedural history[7]The Claimant sent the Second Defendant a pre-action letter on 12 May 2026 and then corresponded with its secretary Nicola Webster by email about the threatened injunction proceedings.[8]Proceedings were commenced by the issue of a Part 8 Claim Form on 8 June 2026. The same day the Claimant applied for an injunction and a hearing was set for 12 June 2026[9]The Claimant notified the Second and Third Defendants of the application and hearing, and supplied copies of the application papers by email to Ms Webster on 10 June 2026. When doing so, the Claimant asked Ms Webster to forward a copy of the email and enclosures to all members of the Second Defendant without delay.[10]The same day, the Claimant also sent notice of the application and hearing, and the application papers, by email to a list of email addresses recently used by the Claimant to circulate a “Notice to Mariners” which list, the Claimant believes, includes the key members of the Second Defendant who are known to be operating in and around the Survey Area, the key members of the Wells and District Fishermen’s Association (WDIFA: another association whose members fish in the area) and other individuals or organisations who have an interest in the Claimant’s proposed surveys or who have assets in the area.[11]On the afternoon of 11 June 2026 a “Notice of Application for Injunctive Relief” was affixed to signposts at 5 locations along the coast near the Survey Area. The Court documents and notice of hearing were also placed by process servers on 7 fishing vessels which are believed to be linked to the fishing gear that is presently in the Survey Area.[12]At the hearing on 12 June 2026 HHJ Bertodano, sitting as a High Court Judge declined to deal with the application because of concerns she had about the sufficiency of notice given to the Defendants, whether sufficient steps had been taken to identify those likely to be affected by the injunction, and the sufficiency of the Claimant’s evidence in relation to attempts to engage with the local fishing community before applying for an injunction. She gave directions and adjourned the hearing to 17 June 2026. Events following the hearing on 12 June 2026[13]A Witness Statement of Alice Woodridge, of the Claimant’s solicitors, sets out the steps taken to comply with HHJ Bertodano’s directions to give notice of the hearing on 17 June 2026. The Second Defendant now has solicitors on record.[14]The notice procedure resulted in a named individual, James Chambers, coming forward to identify himself as a fisherman operating in the Survey Area and describing himself as one of the main fishermen who will be directly impacted by the proposed injunction. He has been served with the application documents and the Claimant seeks to join him as a named defendant, as well as J&S Shellfish Ltd (the company through which he operates his fishing vessel) and his son Callum, who, like his father, is a skipper of the vessel.[15]The Claimant has filed further evidence aimed at addressing the perceived deficiencies which dissuaded HHJ Bertodano from hearing the application on 12 June 2026. They comprise a statement from the Project’s fishing liaison officer, Nigel Proctor, dated 16 June 2026; a further short statement from Mr Proctor dated 17 June 2026; and a statement from the Claimant’s “consents manager” Mark Jones dated 16 June 2026. I have taken these statements into account along with the evidence previously filed by the Claimant. Responsive evidence[16]Nicola Webster, has filed a Witness Statement on behalf of the Second Defendant dated 15 June 2026 in which she explains that the Second Defendant itself does not conduct any fishing or own or control any vessels or fishing gear, and has no power to compel its members to take any actions. She has provided a list of the vessels operated by the Second Defendant’s members, while making clear that the membership does not account for all those who fish in the Survey Area (and indeed that some members do not fish in the Survey Area). She has not identified any individual members. I address the contents of her Witness Statement further below.[17]I was also shown an email to the Claimant’s solicitors from James Chambers (now the Fifth Defendant) dated 16 June, setting out the position of himself and (what are now) the Fourth and Sixth Defendants. Again, I address its contents further below.[18]None of the Defendants attended the hearing before me on 17 June 2026 and they were not represented. Factual background[19]I take the following from the Claimant’s Witness Statements (while making clear that I am not presently resolving any contested issues of fact). The Project and the need for surveys[20]The Project is for the expansion of two existing windfarms: Sheringham Shoal and Dudgeon. It will double the existing capacity and is expected to generate sufficient renewable energy to power approximately 700,000 homes. The Project is sanctioned by a Development Consent Order made by the Secretary of State for Energy Security and Net Zero on 17 April 2024: the Sheringham Shoal and Dudgeon Extension Offshore Wind Farm Order 2024 (the DCO). The Project is designated as a Nationally Significant Infrastructure Project and, when making the DCO, the Secretary of State noted that it would make a substantial contribution to meeting established national targets for renewable energy generation. The UK government has an ambition to generate 50 GW of clean, renewable energy from offshore wind by 2030 as part of its Net Zero strategy.[21]Among other things, the Project will require a connection to the national grid. This will involve a subsea cable, to be laid on the seabed. On land, it will involve buried cables running primarily in trenches from the coast to a point of connection with the grid. The area where the subsea cable reaches land, within approximately the 1km area closest to shore, is termed the “landfall” and in this area the subsea cable would be installed through ducts drilled by horizontal directional drilling.[22]Before construction can commence, the Claimant must carry out a succession of surveys. First, it must conduct preliminary non-invasive surveys of the seabed. Second, it must conduct invasive geotechnical surveys, drilling boreholes into the seabed. Information from the preliminary surveys will be used to determine the appropriate sites for the boreholes. The present application is concerned with ensuring that the preliminary surveys (the Surveys) can go ahead.[23]The Surveys have a threefold focus:(1) to identify any potential unexploded ordnance which may need to be avoided or cleared;(2) to better understand where and how sediment is distributed in the area, to inform design of the landfall infrastructure and location of the horizontal directional drilling exit pit; and(3) to map outcroppings and sub-cropping chalk, to identify suitable locations for drilling and to minimise impacts on the protected feature of the Cromer Shoal Chalk Beds Marine Conservation Zone.[24]The Claimant has contacted the Crown Estate in respect of its proposal to undertake the Surveys, and the Crown Estate has confirmed that a seabed activity licence is not required due to the non-intrusive nature of the works. So far as concerns the licensing requirements under the Marine and Coastal Access Act 2009 (the 2009 Act ), the Marine Management Organisation (MMO) has confirmed that the Claimant can rely on the exemption under Article 17(1)(a) of the Marine Licensing (Exempted Activities) Order 2011. The Survey Area and the presence of fishing gear[25]The Survey Area comprises a central zone, where the survey work will actually be carried out, which is about 1.85 km 2, together a surrounding buffer zone of about 2.99 km 2 so, a total of about 4.84 km 2. It begins directly at the coast. Mr Proctor describes it as “a small geographical area of the nearshore (within the 10m depth contour) area of the North Norfolk Coast”. He says it represents about 0.11% of the area that, he understands, is typically fished by members of the Second Defendant. The Survey Area lies within the Greater Wash Special Protection Area (GW SPA) which is designated as such because of, amongst other things, its internationally important overwintering bird populations.[26]Mr Proctor’s view is that the fishing gear in the Survey Area that is presently making the Surveys impractical or unsafe consists of shellfish pots and perhaps also some gill nets. Both types of gear are fixed to the seabed by anchors and then marked on the surface with a buoy or can (referred to as an “end”). Mr Proctor has been conducting or commissioning “scouting surveys” over the past weeks to identify where the fishing gear is located. He notes that the amount of gear in the Survey Area has increased over that time. His most recent survey (11 June 2026) identifies over 100 “ends” within the Survey Area. Most of these ends have a substantial amount of floating rope attached to them (possibly because they have been moved into the Survey Area from deeper water).[27]The Claimant’s witness Gareth Edwards explains that the presence of fishing gear of the sort described by Mr Proctor creates risks for the vessels being used for the Survey and those that operate them. There is a risk of the survey vessels’ propellers becoming entangled, particularly given the prevalence of ropes floating at or near the surface in addition to those descending to the gear on the seabed, and because it is not possible to tell from the surface how many pots (etc) there may be connected to any particular end, or their precise location. There is also a risk of damage to the fishing gear itself. Accordingly, when fishing gear is located through a scouting survey, a 100-metre exclusion zone is placed around it to avoid these problems. Engagement with local fishermen[28]Mr Proctor (who is an independent consultant, not an employee of the Claimant) has been appointed to facilitate engagement and discussions between the Claimant and local fishermen. He has performed that role on a number of previous projects and he explains that he has sought to follow guidance issued by the Fishing Liaison with Offshore Wind and Wet Renewables Group (FLOWW) which makes recommendations about how developers and local fishermen should engage when survey or construction activities may interfere with fishing and how appropriate compensation should be calculated where works disrupt fishing activities. He explains that, in accordance with the FLOWW guidance, he has been seeking to engage with the Second Defendant and WDIFA since December 2025 when notification of the intended works was first given, but that his efforts have not been entirely successful. In particular, he has been unable to secure a comprehensive agreement for the removal of fishing gear from the Survey Area for the Relevant Period (despite a preparedness on the Claimant’s part to offer compensation); he has not been able to compile a complete list of fishermen with gear in the area; and he has not been able to attribute all the gear in the area to identified vessels or fishermen. There is a full list of Mr Proctor’s attempts to engage in his Witness Statement. I understand that there was also a mediation on 2 June 2026 which was unsuccessful. One of the sticking points in the course of negotiations with the Second Defendant appears to be the appropriate level of compensation.[29]Ms Webster in her Witness Statement complains that the Claimant has only recently notified the Second Defendant of the exact co-ordinates of the Survey Area. However, it seems to me that the essential outline of the Survey Area has been well understood for a long time: see e.g. the “Notice to Mariners” issued by the Claimant on 1 April 2026, which includes a map and some co-ordinates.[30]The list of vessels operated by members of the Second Defendant that Ms Webster has supplied does not include Mr Chambers’ vessel, which supports her point that the Second Defendant’s membership does not account for all those who fish in the Survey Area.[31]WDIFA told Mr Proctor, in a telephone call on 7 May 2026, that none of its members (who operate 12 vessels) had fishing gear in the Survey Area at the time. However WDIFA has not replied to a subsequent email on 1 June 2026, notifying its members of the Claimant’s intention to seek injunctive relief and asking for confirmation that none of them presently has fishing gear in the Survey Area. Timing/urgency[32]The original plan had been to conduct the Surveys in April 2026 but this was not achieved because (unexpectedly, according to Mr Proctor, by reference to the same period in 2025, when there was no fishing gear present) there was a substantial amount of fishing gear in the Survey Area at that time.[33]Around 47% of the Surveys have now been undertaken but the presence of fishing gear in the Survey Area has prevented the Surveys from being completed. I was told that analysis of the data cannot meaningfully commence until all the Surveys have been completed.[34]Mr Edwards says that delays to date have already given rise to additional fees due to the Claimant’s survey contractor, XOcean, and that further delays will imperil key dates.[35]The Claimant’s Simon Franey identifies as a critical date 1 August 2026, by when, he says, the Claimant must have the results of the Survey if it is to be able to confirm the borehole locations for the geotechnical survey by 1 October 2026 (that 2 month window already being less than ideal – 3 months would be preferable). That date in turn needs to be met, he says, because before the geotechnical survey can go ahead, the Claimant is required to engage in a statutory consultation with Natural England and to obtain licences from the MMO, a process which is likely to take 9 months (i.e. until July 2027). Only then can the geotechnical surveys go ahead and they will need to be completed by the end of September 2027. After that, the surveys are at risk of being disrupted by bad weather and by conservation considerations which require, as best practice, that vessel movements outside existing navigational routes be avoided within the GW SPA between 1 November and 31 March each year. Missing the window for the geotechnical surveys in late summer 2027 would therefore risk delaying them until Spring 2028 by which time it is unlikely that the Project could be completed in time to contribute to the government’s 2030 target for renewable energy.[36]Taking this all into account, the Claimant says, the remaining work on the Surveys needs to start on 20 June, and will last around 14 days. The order sought by the Claimant[37]In its latest form, the Claimant’s draft order has the following relevant features:(1) It adds the 3 new proposed Defendants;(2) The operative part of the injunction prohibits “bringing fishing gear or other related equipment used for the purpose of catching marine life … into the “Survey Area” and from obstructing in any manner whatsoever the survey activities carried on by or on behalf of the Claimant within the Survey Area”;(3) There is a paragraph setting out various exceptions which among other things states that nothing in the Order creates liability for either the Second Defendant or WDIFA by reason of the actions of their individual members;(4) There is a paragraph subtitled “enforcement” which authorises the Claimant to remove fishing gear from the Survey Area and relocate it to a safe location outside;(5) There is provision for a return date;(6) There is the usual cross-undertaking as to damages. Legal principles[38]The law in relation to injunctions was comprehensively reviewed by the Supreme Court in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47, [2024] AC 983. The Court confirmed that there is a wide equitable jurisdiction to grant injunctions where just and convenient, now reflected in s37 of the Senior Courts Act 1981, but that the jurisdiction must be exercised in a principled way.[39]Three particular types of injunction require consideration in this case. “Ordinary” interim injunctions granted on the American Cyanamid basis[40]In an ordinary private law claim, where the Defendant can be named or identified in some other way, the Court will only grant an injunction before trial where the well-known American Cyanamid principles favour such an[41]The injunction will be interim in nature (“until trial or further order”). Moreover, if it is obtained without notice to the defendant, or on such short notice that the defendant has had insufficient opportunity to prepare evidence and arguments in response, the Court will set a “return date” some days or weeks later, where the application is reargued in full in light of whatever evidence and arguments the defendant has mustered. If the injunction is continued at that point, the defendant is unlikely to be able to discharge it before trial unless they can demonstrate some material change of circumstances in the meantime.[42]There are two situations in which the Court will be particularly wary about granting interim relief.[43]The first is where what is sought is an order requiring a defendant to take some positive act, rather than simply refraining from acting in a particular way (a “mandatory injunction”). The Court will usually only grant a mandatory injunction at the pre-trial stage if it feels a high degree of assurance that the claimant will be able to establish his right at trial, though it may still be appropriate to grant an injunction if that high threshold is not met where the risk of injustice if the injunction is refused sufficiently outweighs the risk of injustice if it is granted: Nottingham Building Society v Eurodynamics Systems [1993] FSR 468 (Chadwick J).[44]The second situation requiring special care is where the grant of an injunction would effectively give the claimant everything they seek in the substantive claim, as when it is unlikely that a trial can be held within the period for which the claimant is seeking to restrict the defendant’s activities. In such a case “some assessment” of the claimant’s prospects of success (going beyond what would normally fall to be considered under American Cyanamid ) will be required: see Lansing Linde Ltd v Kerr [1991] 1 All ER 418 at 432-424 (Staughton LJ). Injunctions without any underlying cause of action[45]In Wolverhampton at [43]-[49] the Supreme Court recognised that it is not essential that the party applying for an injunction should have a civil cause of action against the respondent. Examples were given of situations in which this has been permitted.[46]In Canada Goose UK Retail Limited v Persons Unknown [2020] 1 WLR 2802 the Court of Appeal held that, in appropriate circumstances, it was open to the court to limit even lawful activity, where there was no other proportionate means of protecting a claimant’s rights. Although the Supreme Court did not include this situation in its list of examples, I do not detect any disapproval of this part of the Court of Appeal’ s decision in Canada Goose. On the contrary, the Supreme Court implicitly sanctions it at [223], saying: “…if and insofar as the [public] authority [claimant] seeks to enjoin any conduct which is lawful viewed on its own, this must also be made absolutely clear, and the authority must be prepared to satisfy the court that there is no other more proportionate way of protecting its rights or those of others”.[47]Canada Goose was followed by Martin Spencer J in Orsted Hornsea Protect Three (UK) Ltd [2021] EWHC 977 (QB) on facts very similar to those in the present case. (And, as here, the Claimant also relied on public nuisance as a cause of action). The Claimant had obtained rights under a development consent order to develop an offshore wind farm in the North Sea and needed to carry out various surveys which were liable to interfere with the fishing rights of local fishermen. The Claimant had sought to engage with various local fishing groups including, as it happens, the Second and Third Defendants in the present case and WDIFA.[48]Martin Spencer J accepted that there was a lawful right for members of the public to fish in the waters concerned and that the Crown’s ownership of the seabed did not interfere with that right. He therefore treated it as a case where there were two competing lawful rights in play, viz (at [24]) “…the rights of the applicant to exploit the licenses and permissions which it has obtained in order to construct wind farms for the general benefit of the population as well as their own commercial benefit, and the rights of the local fishermen on the other hand to fish these waters and to ply their centuries-old trade, in particular in relation to the abundant shellfish which can be fished on these waters”. At [29] he explained how he had gone about balancing the respective rights:
“In my judgment, where there are competing rights, in this case statutory rights and common law rights, it is open to the court in any particular case to decide which of the competing rights should take precedence on the basis of an examination of all the circumstances, including the benefit to the individual parties, the benefit to the public in general, the extent to which there is economic imbalance in preferring the right of one party to the right of another, and the extent to which the exercise of a particular right is limited by geographical and temporal considerations. On that basis, in my judgment, the rights of the applicant in this case clearly outweigh and take precedence over the rights of the fishermen. The right which Ørsted have established to carry out these surveys is within a limited geographical area of the North Sea and does not prevent the fishermen from fishing other areas of the North Sea and thus earning their living. The right they seek to exploit for the purposes of this application is limited temporally in the sense that it is only from 22 April until the 17th June. Furthermore, I take into account the fact that Ørsted have agreed to offer compensation to those fishermen who can establish, on the basis of evidence, loss as a result of being unable to fish the relevant area in the time concerned.”
Injunctions against “newcomers”[49]In Wolverhampton the Supreme Court recognised that injunctions against “newcomers”, i.e. persons who at the time of the grant of an injunction were neither defendants nor identifiable and were described in the injunction only as “persons unknown” (see Headnote, holding 2), are permissible in principle, but set out strict criteria by which an application for such an injunction should be judged. The case was specifically concerned with injunctions preventing gypsies and travellers from occupying land, but the principles are clearly of wider application. At [167], the Court said: “…there is no immoveable obstacle in the way of granting injunctions against newcomer Travellers, on an essentially without notice basis, regardless of whether in form interim or final, either in terms of jurisdiction or principle. But this by no means leads straight to the conclusion that they ought to be granted, either generally or on the facts of any particular case. They are only likely to be justified as a novel exercise of an equitable discretionary power if: i. There is a compelling need, sufficiently demonstrated by the evidence, for the protection of civil rights (or, as the case may be, the enforcement of planning control, the prevention of anti-social behaviour, or such other statutory objective as may be relied upon) in the locality which is not adequately met by any other measures available to the applicant local authorities (including the making of byelaws). This is a condition which would need to be met on the particular facts about unlawful Traveller activity within the applicant local authority’s boundaries. ii. There is procedural protection for the rights (including Convention rights) of the affected newcomers, sufficient to overcome the strong prima facie objection of subjecting them to a without notice injunction otherwise than as an emergency measure to hold the ring. This will need to include an obligation to take all reasonable steps to draw the application and any order made to the attention of all those likely to be affected by it (see paras 226-231 below); and the most generous provision for liberty (ie permission) to apply to have the injunction varied or set aside, and on terms that the grant of the injunction in the meantime does not foreclose any objection of law, practice, justice or convenience which the newcomer so applying might wish to raise. iii. Applicant local authorities can be seen and trusted to comply with the most stringent form of disclosure duty on making an application, so as both to research for and then present to the court everything that might have been said by the targeted newcomers against the grant of injunctive relief. iv. The injunctions are constrained by both territorial and temporal limitations so as to ensure, as far as practicable, that they neither outflank nor outlast the compelling circumstances relied upon. v. It is, on the particular facts, just and convenient that such an injunction be granted. It might well not for example be just to grant an injunction restraining Travellers from using some sites as short-term transit camps if the applicant local authority has failed to exercise its power or, as the case may be, discharge its duty to provide authorised sites for that purpose within its boundaries. “ i. There is a compelling need, sufficiently demonstrated by the evidence, for the protection of civil rights (or, as the case may be, the enforcement of planning control, the prevention of anti-social behaviour, or such other statutory objective as may be relied upon) in the locality which is not adequately met by any other measures available to the applicant local authorities (including the making of byelaws). This is a condition which would need to be met on the particular facts about unlawful Traveller activity within the applicant local authority’s boundaries. ii. There is procedural protection for the rights (including Convention rights) of the affected newcomers, sufficient to overcome the strong prima facie objection of subjecting them to a without notice injunction otherwise than as an emergency measure to hold the ring. This will need to include an obligation to take all reasonable steps to draw the application and any order made to the attention of all those likely to be affected by it (see paras 226-231 below); and the most generous provision for liberty (ie permission) to apply to have the injunction varied or set aside, and on terms that the grant of the injunction in the meantime does not foreclose any objection of law, practice, justice or convenience which the newcomer so applying might wish to raise. iii. Applicant local authorities can be seen and trusted to comply with the most stringent form of disclosure duty on making an application, so as both to research for and then present to the court everything that might have been said by the targeted newcomers against the grant of injunctive relief. iv. The injunctions are constrained by both territorial and temporal limitations so as to ensure, as far as practicable, that they neither outflank nor outlast the compelling circumstances relied upon. v. It is, on the particular facts, just and convenient that such an injunction be granted. It might well not for example be just to grant an injunction restraining Travellers from using some sites as short-term transit camps if the applicant local authority has failed to exercise its power or, as the case may be, discharge its duty to provide authorised sites for that purpose within its boundaries. “[50]As to the key requirement of a “compelling need” for an injunction, the Supreme Court said that this is the “overarching principle that must guide the court at all stages of its consideration” [188] and that there must be a “strong probability that a tort or breach of planning control or other aspect of public law is to be committed and that this will cause real harm. Further the threat must be real and imminent”: [218].[51]Subsequent cases have sought to break down the Wolverhampton requirements into various subcategories: see e.g. Valero Energy Ltd v Persons Unknown [2024] EWHC 134 (KB) at [57]-[58], Jockey Club Racecourses Ltd v Persons Unknown [2024] EWHC 1786 (Ch) at [14]-[20] and Shell Oil UK Ltd v Persons Unknown [2024] EWHC 313- (KB) at [59]. I do not propose to set these passages out. I have taken into account the factors they identify where relevant to the present application.[52]Increasingly, injunctions are being granted against both persons unknown (including newcomers) and identified defendants. I see no problem with this in principle so long as the identified defendants are not left worse off by being combined with persons unknown (for example by depriving them of a return date which the Court would have fixed in an ordinary interim injunction case). The Claimant’s submissions[53]Mr Morshead KC for the Claimant relies upon the public right to navigation that is enjoyed by all, including the Claimant, and the fact that no licences are required from the Crown Estate or under the 2009 Act to conduct the Surveys. Notably, in contradistinction to the claimant’s position in Orsted, he does not presently rely on any statutory authority derived from the DCO (which, at least on its face, governs only the second-stage surveys, not the current preparatory work).[54]Mr Morshead submits that the Claimant has a strong case in public nuisance. He draws on authority concerning the public right of navigation of inland waterways (see e.g. Couper v Albion Properties [2013] EWHC 2993 at [529]-[545]) and, while recognising that the equivalent right to navigate on the open sea is less likely to be unreasonably interfered with, he submits that where, as here, a claimant has a reasonable need to navigate along a particular course, a person who obstructs them by placing or leaving objects in the way may interfere unreasonably with the claimant’s exercise of its public rights and commit the tort. He submits that there is a strong argument that the Defendants have done/will do so here given the public importance of carrying out the Surveys and the relatively minor disruption to the Defendants’ fishing rights (also a form of public right) that would be caused by keeping their gear out of the Survey Area for a short time.[55]Further or alternatively, Mr Morshead submits that there is a strong case for an injunction on Canada Goose principles, whether or not the Defendants’ conduct can be classified as tortious. Again, he points to the strong public interest in the swift completion of the Surveys as balanced against the relatively minor disruption to the Defendants’ fishing operations, which can be compensated for financially.[56]Mr Morshead submits that the procedural requirements set out in Wolverhampton have been met and that, bearing in mind the considerations identified in Wolverhampton,this is a case where there is a compelling justification for a short-lived, territorially-restricted injunction and it is just and convenient to grant it. The Defendants’ position[57]Although I received no representations, I can glean something of the position of the Second Defendant from Ms Webster’s Witness Statement, and something of the position of the Fourth, Fifth And Sixth Defendants from the Fifth Defendant’s email of 16 June 2026.[58]Ms Webster does not formally object to the grant of an injunction, but questions whether the Second Defendant is a proper defendant to the claim. She is also critical of the Claimant’s level of engagement, noting that there have only been three face-to-face meetings and suggesting that the Claimant and Mr Proctor have supplied only limited information. She also expresses surprise that the Claimant has not yet managed to identify the fishermen concerned. She notes that the Second Defendant has sought assistance from the National Federation of Fishermen’s Organisations to resolve the issues and has sought to engage in mediation and alternative dispute resolution.[59]As for the Fourth, Fifth and Sixth Defendants, the Fifth Defendant’s email relevantly states:
“…we do not oppose your client’s urgent surveys being carried out in principle. However, we do oppose any injunctive relief that would unnecessarily restrict or prevent our lawful fishing activities beyond what is reasonably required for the surveys to take place. As previously indicated, we intend to continue fishing within the survey area as part of our normal fishing operations, but we remain willing to engage constructively with your client to seek practical arrangements that allow the surveys to proceed while minimising disruption to our business and fishing activities. I have always been very open to work along side the Wind Farm companies in the past. Had I been contacted sooner I am sure we would have already have finished our discussions and reach [sic] an agreement…”
[60]So, I perceive from these communications at least a suggestion from some of the Defendants that the Claimant is in a bind of its own making – not having taken sufficient steps to identify the actual fishermen involved and not having engaged sufficiently with stakeholders to secure an agreed way forward. I take these considerations into account. Discussion and reasons[61]I will deal with my decision under a number of headings: (1) Notice and the sufficiency of the new evidence[62]I am satisfied that, the Claimant having taken the additional steps directed by HHJ de Bertodano, all Defendants, including the additional Defendants, had sufficient notice of the hearing before me. Mr Morshead properly drew my attention to the fact that, in respect of two of the seven specified vessels in the Judge’s order, it had not been possible to place documents on the deck as required because the vessels were behind locked gates. Instead, process servers affixed the relevant documents to the gates. This does not amount to material non-compliance, in my view. I have approved provisions in the draft order which formally abridge time for service of formal documents where necessary.[63]I am also satisfied that the further evidence filed by the Claimant now puts me in a position where I can fairly decide the application. (2) Parties[64]Persons Unknown: I accept the Claimant’s evidence about the steps it has taken to identify individuals who are responsible for the fishing gear in the Survey Area or who might leave gear there in the future, and the difficulties involved in doing so successfully. The Claimant’s witnesses explain that, although in some cases, it is possible to trace a buoy etc to a particular vessel, it is then not possible to identify the owner/operator of a vessel from public records: licences are required for fishing of this type but the licence is granted to the vessel and the owner/operator is not noted in publicly accessible records. Further, the Second Defendant has stated that it is unable to disclose the identity of its individual members (so Ms Webster’s criticisms of the Claimant’s efforts seem a little unfair).[65]Mr Morshead candidly accepted that, had it been anticipated sooner that injunctive relief might prove necessary, the Claimant could have invoked the Court’s jurisdiction to order disclosure of the identities of individuals (e.g. a Norwich Pharmacal application against the Second Defendant). However, he also submitted, and I accept, that such steps would probably not have obviated the need for a “persons unknown” order. As Ms Webster states, the Second Defendant’s members do not account for all those who fish in the Survey Area. The same would seem to be true for WDIFA (the Fifth Defendant, for example, is not a member of either, it seems, and is only known to the Claimant because he came forward voluntarily).[66]Moreover, if the Survey Area is to be kept free of fishing gear for the period of the Surveys, then it is necessary for there to be an order encompassing genuine newcomers (those who are not presently fishing or threatening to fish in the Survey Area but may do so in the future).[67]For these reasons, I was persuaded that it is appropriate to take the exceptional course of granting an injunction against “persons unknown” including newcomers. The description used is sufficiently precise.[68]The Second Defendant: given Ms Webster’s evidence that the Second Defendant does not own, operate or control any fishing vessels or gear and has no power to control the activities of its members, I see no justification for making the Second Defendant the subject of an injunction. Whether it is appropriate for it to be a Defendant at all is, to my mind, doubtful, but there is presently no application to strike out the claim against it so I shall say no more about that point. If the Second Defendant were to aid or abet any of the other Defendants to breach the injunction, then it would likely be found in contempt of court, as explained in the Penal Notice to the order I have made.[69]The Third Defendant: the Third Defendant was joined, as I understand it, because he is chairman of the Second Defendant. The Claimant has produced no evidence that he is responsible for any fishing gear presently in the Survey Area. Nevertheless, Mr Morshead narrowly persuaded me that this Defendant should be directly bound by the injunction. He pointed me to Ms Webster’s evidence which states that the Third Defendant is a full-time fisherman and (as I understand it) a member of the Second Defendant. Since at least some members of the Second Defendant do fish in the Survey Area, there is just about enough evidence to support a case that there is a real risk that the Third Defendant would fish there if not restrained. This will require careful scrutiny at the return date, in light of any information that the Third Defendant chooses to place before the Court.[70]The Fourth, Fifth and Sixth Defendants: Having come forward and identified themselves as persons who fish in the Survey Area and who will be affected by the injunction it is desirable (see CPR 19.2) to add these two individuals and their company as parties. It is also appropriate that they be bound by the injunction. The Fifth Defendant’s email, though conciliatory in places, makes it clear that these Defendants will continue to fish in the Survey Area if they consider the Claimant’s requests to be unreasonable, unless they are restrained by injunction. (3) The Wolverhampton criteria[71]A compelling need? I am satisfied that the evidence now before the Court sufficiently demonstrates a compelling need for an injunction, at least until the return date I have set for 1 July 2026.[72]For the reasons given by Mr Morshead, the Claimant has a strong case in public nuisance or, alternatively, under the Canada Goose principle (on the facts of this case there is probably little to choose between them, since both require a fact-sensitive balancing of the Claimant’s rights of navigation against the Defendant’s fishing rights). The Project is acknowledged to be one of national significance and is intended to play a substantial part in helping to achieve the 2030 clean energy target. The Claimant’s evidence convincingly demonstrates how a failure to commence further work on the Surveys by 20 June 2026 risks having a knock-on effect on the Project timetable and calls into question whether the Project could be completed in time to have the intended effect on clean energy supplies. These are not matters that can be compensated for in damages. By contrast, the evidence suggests that the time-limited restriction on leaving fishing gear in the Survey Area will have only a modest impact on those who fish there. It is not suggested that the Surveys will degrade the seabed or damage stocks. The disruption and loss of profits that fishermen may experience can be compensated for in money. The injunction includes the usual cross-undertaking as to damages and, through Mr Morshead, the Claimant has confirmed that it remains committed to compensating the affected fishermen in any event, in line with the FLOWW guidelines (as it had been trying to negotiate) - i.e. even if the injunction is not set-aside or found to have been wrongly granted.[73]I do not consider that the Claimant’s case is materially weakened by the fact that (in contrast to Orsted) it is not invoking any statutory authority to conduct the Surveys under the DCO.[74]The injunction represents the least interference with the Defendants’ rights that is necessary in order to permit the Surveys to be undertaken (and would be a proportionate interference with their ECHR A1 P1 rights if those are engaged). Mr Morshead explained that he had deliberately refrained from seeking a mandatory order requiring the Defendants to remove fishing gear from the Survey Area (which would have exposed those who were slow to do so to potential contempt proceedings). Instead the injunction is forward-looking, prohibiting the bringing of new gear or other obstructions into the Survey Area, while authorising the Claimant to remove any gear presently there.[75]I was initially concerned that the provision permitting the Claimant to remove gear from the Survey Area might result in the Claimant relying on it to deny liability for any loss or damage it might cause in the course of removal. Mr Morshead assured me that that was not the intention and I have caused additional wording to be added to make that clear.[76]Lastly, on the question of “compelling need”, the Claimant has very properly drawn my attention to s102 of the 2009 Act which allows the MMO to issue a “stop notice” to prevent activity that is likely to cause serious interference with legitimate uses of the sea. The Claimant’s evidence then goes on to explain however that, through its prior dealings with the MMO in other windfarm developments, it has become clear that the MMO will not use its powers to resolve conflicts between users of the sea and that its policy is to use stop notices only where there has been a breach of a relevant licence condition. This being a “competing uses” case, not a licence breach case, I am satisfied that seeking the involvement of the MMO is not a realistic alternative to injunctive relief.[77]“Procedural protection for the rights of the affected newcomers”: the draft order I was asked to approve includes detailed provisions for service, including steps to bring the injunction to the notice of the presently unidentified fishermen and any newcomers who might be affected. These include circulating the order to the addressees of the initial Notice to Mariners, placing the papers on the decks of the 7 vessels that are believed to be engaged in fishing in the Survey Area, and displaying a “notice of application” at prominent locations on local beaches, inviting interested individuals to seek further detail from the Claimant’s solicitors. Further, as well as setting a return date, the Order includes the usual provision permitting any Defendant to apply to vary or discharge the order. There is no limitation on the points that anyone making such an application may raise (they will not be required, for example, to demonstrate some material change in circumstances). I am therefore satisfied that there are sufficient procedural protections in place.[78]Full and frank disclosure: I am satisfied that the Claimant has complied with its duty. It did so, among other things, by drawing my attention to the powers of the MMO which might have served as an alternative to injunctive relief (though do not adequately do so, for the reasons I have given). Mr Morshead was careful to draw my attention to the Defendants’ evidence, such as it is, and to points that could be taken in the Defendants’ favour.[79]Territorial and temporal limitations: the Survey Area is small and carefully defined on the plan attached to the Order. I accept that it is the smallest area that can reasonably be demarcated in order to ensure the safe and effective completion of the Surveys. It is, on the evidence, only a very small proportion of the fishing grounds fished by local fishermen.[80]The Order I have made lasts only until a return date hearing on 1 July 2026. The Surveys are unlikely to have been completed any earlier than that, even if works recommence immediately. The court will be able to decide, on that occasion, whether there is any compelling need to extend the injunction for a further short period.[81]“Just and convenient”: it is under this heading that I need to consider the nature and extent of the Claimant’s engagement with the local fishing community and whether a different or prompter approach would have avoided matters coming to a head in the way that they have.[82]I note Ms Webster’s criticisms of the Claimant in this regard. However, Mr Proctor’s evidence goes into great detail about the steps he has taken, in accordance with the FLOWW guidelines, to engage with and secure the co-operation of the fishermen. These efforts have been going on for many months (starting in December 2025) and extend greatly beyond the three face-to-face meetings that Ms Webster notes (it is not disputed that these were the only such meetings, but there has also been extensive email correspondence with interested parties). It is not for me to determine why negotiations have been unproductive. However, the evidence does not suggest that the Claimant has been unduly slow, or has lacked the will to reach a negotiated solution. Moreover, the obstacles to identifying the actual fishermen involved, so as to engage with them directly, are real and significant in this case, as I have already explained.[83]Accordingly, the fact that the Claimant has not managed to bring about a mutually acceptable arrangement does not justify refusal of relief when the balance of convenience otherwise points strongly in favour of a short-lived injunction. I repeat what I have said about this already. Essentially, the public interest in allowing the Surveys to be completed in a timeframe that will not jeopardise future key deadlines in the Project, and the importance of the Project itself, outweigh the brief disruption to fishing rights, which can be compensated for financially. (4) The Injunction against the named Defendants[84]As I mentioned, it would not be right to treat the named Defendants any less favourably, by virtue of their being joined in a claim against persons unknown, than they would be treated in a claim against them alone.[85]I do not consider that there is any such prejudice to the named Defendants here. The American Cyanamid criteria, which I would have applied in a claim concerning named Defendants only, are effectively subsumed within the Wolverhampton criteria. Indeed I have found that, not only is there a serious issue to be tried, but there is a strong case against the Defendants. That finding is enough to satisfy the heightened Lansing Linde standard that may well apply in this case (given that a short interim injunction will likely give the Claimant everything it was seeking and will have expired before a trial can be held). The Claimant cannot be adequately compensated in damages whereas the Defendants can, and the balance of convenience favours the grant of an injunction against the named Defendants for the same reasons that I have found there is a compelling need to grant an injunction against persons unknown and that it is just and convenient to do so.[86]The Fourth, Fifth and Sixth Defendants, echoing Ms Webster, criticise the Claimant for not having approached them earlier. However, Mr Proctor addresses this in his evidence. He says that he was aware that the Fifth Defendant’s father (David Chambers) owned vessels and that the Fifth Defendant had previously skippered one of them. However, he says that he had found no evidence that the Fifth Defendant was still active in the area and that David Chambers had told Mr Proctor in December 2025 that he had fallen out with the Fifth Defendant and would not provide any information about him. Essentially, therefore, Mr Proctor says that he was unaware that the Fourth, Fifth and Sixth Defendants would be affected by restrictions in the Survey Area until they came forward. In the circumstances, I do not see that Mr Proctor can be criticised and, as with the history of his engagement with the local fishing community generally, I do not see that there is any basis here for refusing relief which is otherwise justified.[87]The named Defendants deserve a return date, given that key evidence from the Claimant was filed (as permitted by HHJ Bertodano) only the day before the hearing (and in the case of Mr Proctor’s second statement, on the day of the hearing). I have therefore granted the injunction only until that return date hearing. Conclusion[88]For these reasons, the Claimant is entitled to an injunction in the terms I have approved, until the return date on 1 July 2026 (or any adjournment thereof). _________________________________________

order

American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) (I leave out of the discussion certain media and communications claims where a higher threshold applies). Thus, the classic three-part test requires the Court to consider:(1) is there a serious issue to be tried,(2) would damages would be an adequate remedy for a party injured by the court’s grant of, or refusal to grant an injunction(3) if not, where does the “balance of convenience” lie?