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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Balfour Beatty Group Ltd v Persons Unknown & Ors [2022] EWHC 874 (QB) (17 March 2022) URL: http://www.bailii.org/ew/cases/EWHC/QB/2022/874.html Cite as: [2022] EWHC 874 (QB) |
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham, B4 6DS |
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B e f o r e :
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BALFOUR BEATTY GROUP LIMITED |
Claimant |
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- and – |
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(1) PERSONS UNKNOWN OBSTRUCTING AND/OR INTERFERING WITH ACCESS TO AND EGRESS FROM LAND KNOWN AS THE BALFOUR BEATTY COMPOUND, OFF THE A51/A519 ROUNDABOUT, SWYNNERTON, ST15 0QS AND SHOWN MARKED IN BLUE AND GREEN ON THE PLAN APPENDED TO THE PARTICULARS OF CLAIM (2) JAMES TAYLOR (a.k.a "JIMMY KNAGGS", "JAMES KNAGGS" OR "RUN AWAY JIM") (3) KAREN WILDIN (a.k.a "KAREN WILDING", "KAREN WILDEN" OR "KAREN WILDER") (4) ANDREW McMASTERS (a.k.a "DREW ROBSON") (5) I.C. TURNER (6) LEAH OLDFIELD (a.k.a "LEE OLFIELD" or "LEIYAH") (7) SAM HOPKINS (8) THE INDIVIDUAL WITH THE FIRST NAME "STEPHANIE" (a.k.a "STEFF" OR THE ALIAS "NETTLE") |
Defendants |
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MR D. SCOTT (instructed by Pinsent Masons LLP) appeared on behalf of the Claimant.
THE SECOND DEFENDANT appeared in Person.
THE THIRD TO EIGHTH DEFENDANTS did not attend and were not represented.
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Crown Copyright ©
MR JUSTICE LINDEN:
Introduction
Background
Service
"It is a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard."
"...subject to any statutory provision to the contrary, it is an essential requirement for any form of alternative service that the mode of service should be such as can reasonably be expected to bring the proceedings to the attention of the defendant."
Notice of the hearing
The merits of the underlying application for interim relief
"Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him."
"Article 10: Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11: Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
"Freedom of expression
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) ...
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression..."
"(1) Is what the defendant did in exercise of one of the rights in Articles 10 or 11?
(2) If so, is there an interference by a public authority with that right?
(3) If there is an interference, is it 'prescribed by law'?
(4) If so, is the interference in pursuit of a legitimate aim as set out in para.(2) of Article 10 or Article 11, for example the protection of the rights of others?
(5) If so, is the interference 'necessary in a democratic society' to achieve that legitimate aim?"
"That last question will in turn require consideration of the well-known set of sub-questions which arise in order to assess whether an interference is proportionate:
(1) Is the aim sufficiently important to justify interference with a fundamental right?
(2) Is there a rational connection between the means chosen and the aim in view?
(3) Are there less restrictive alternative means available to achieve that aim?
(4) Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?"
"A non-exhaustive list of the factors normally to be taken into account in an evaluation of proportionality was set out at para.39 of the judgment of Lord Neuberger of Abbotsbury MR in City of London Corpn v Samede (see para.17 above). The factors included 'the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public'. At paras.40-41 Lord Neuberger identified two further factors as being: (a) whether the views giving rise to the protest relate to 'very important issues' and whether they are "views which many would see as being of considerable breadth, depth and relevance"; and, (b) whether the protesters 'believed in the views they were expressing'. In relation to (b) it is hard to conceive of any situation in which it would be proportionate for protesters to interfere with the rights of others based on views in which the protesters did not believe."
(a) The Supreme Court emphasised that each case turns on its facts.
(b) The view of the Supreme Court was merely that the district judge had reached a permissible view about how the balance between the competing rights which were in play should be struck in that particular case.
(c) An approach which involves reading across from the facts of Ziegler is therefore unsound particularly if only some of the factual features of the Ziegler case are present.
(d) I note that Ziegler was also concerned with an interference with the protestors' Convention rights which took the form of criminal liability and therefore sanction, whereas I am concerned at this stage with injunctive relief pending trial in a civil action and therefore arguably a less intrusive form of interference.
"One reason for this is that the essence of the rights in question is the opportunity to persuade others. In a democratic society it is important that there should be a free flow of ideas so that people can make their own minds up about which they accept and which they do not find persuasive. However, persuasion is very different from compulsion. Where people are physically prevented from doing what they could otherwise lawfully do, such as driving along a highway to reach their destination, that is not an exercise in persuasion but is an act of compulsion. This may not prevent what is being done falling within the concept of expression but it may be highly relevant when assessing proportionality under para.(2) of Articles 10 and 11."
"Physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by Article 11..."
Submissions
Discussion
Relief against persons unknown
"Building on Cameron and the Ineos requirements, it is now possible to set out the following procedural guidelines applicable to proceedings for interim relief against 'persons unknown' in protester cases like the present one:
(1) The 'persons unknown' defendants in the claim form are, by definition, people who have not been identified at the time of the commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. The 'persons unknown' defendants must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary by alternative service such as can reasonably be expected to bring the proceedings to their attention. In principle, such persons include both anonymous defendants who are identifiable at the time the proceedings commence but whose names are unknown and also Newcomers, that is to say people who in the future will join the protest and fall within the description of the 'persons unknown'.
(2) The 'persons unknown' must be defined in the originating process by reference to their conduct which is alleged to be unlawful.
(3) Interim injunctive relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet relief.
(4) As in the case of the originating process itself, the defendants subject to the interim injunction must be individually named if known and identified or, if not and described as 'persons unknown', must be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order.
(5) The prohibited acts must correspond to the threatened tort. They may include lawful conduct if, and only to the extent that, there is no other proportionate means of protecting the claimant's rights.
(6) The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do. The prohibited acts must not, therefore, be described in terms of a legal cause of action, such as trespass or harassment or nuisance. They may be defined by reference to the defendant's intention if that is strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant is capable of understanding and the intention is capable of proof without undue complexity. It is better practice, however, to formulate the injunction without reference to intention if the prohibited tortious act can be described in ordinary language without doing so.
(7) The interim injunction should have clear geographical and temporal limits. It must be time limited because it is an interim and not a final injunction. We shall elaborate this point when addressing Canada Goose's application for a final injunction on its summary judgment application."
Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] |