UK: Protest – Too Much?

Last Updated: 10 January 2018
Article by Keith Conway

Despite protests from environmental groups groups the Court has granted a peremptory injunction to prevent fracking protesters entering a number of connected business locations and exploration sites.

The Facts

Ineos is a global manufacturer of chemicals and oil products whose commercial activities include shale gas exploration in the UK. Ineos is engaged in "fracking" which is one method of gas exploration and involves the hydraulic fracturing of rock formations. Ineos feared there would be protests at eight sites [the owners and lessees of those sites were also claimants in this action]. Protestors against fracking had in the past entered land and buildings in other locations without the consent of the owners and lessees and interfered with the rights to pass and repass with or without vehicles, materials and equipment over private access roads of those other locations. Most of the acts of protest had not yet taken place at any of the eight sites but Ineos brought an application for an injunction to prevent such protests from taking place in the future. This sort of injunction is rare and known as a quia timet injunction (an injunction in anticipation of a breach of a legal right).

The Defendants

A further interesting aspect of the case was that only the identity of two Defendants was known. They were named as two Defendants, however the other five Defendants were all described as "Persons unknown" followed by their potential activity of protest. For example "Persons unknown interfering with the Claimants' rights to pass and repass with or without vehicles ....over land identified by plans....". And another example "Persons unknown combining together to commit unlawful acts specified in the Court's order...".

The Court order then listed activities of likely protest taken from the activities of protest that had occurred at other fracking sites like: static demonstrations, blockades, walking slowly, people chaining themselves to vehicles and plant equipment, office incursions or occupations and alike. Whilst on the whole the protests at other sites had been peaceful, there had been some considerable intimidation and harassment and some criminality on occasions. Some acts had also been unlawful.

Submissions

Ineos submitted that they would have the following causes of action:

  • Trespass on private land;
  • Actionable interference with private rights of way;
  • Public nuisance caused to Ineos's right to pass and repass on the highway;
  • Harassment; and
  • Conspiracy to injure by unlawful means.

Activities

The Court heard and dealt with a number of detailed legal arguments in respect of each potential activity of protest. Its conclusion was that whilst the potential acts of protests might for instance possibly be a reasonable use of the highway, these acts of protest were likely to go well beyond that threshold.

Judgment

The Court granted the quia timet injunction to prevent the protests and in respect of each of the causes of action except for some relating to harassment. The Court was of the view that there was an imminent and real risk, in the absence of the injunctions that the protestors would interfere with the legal rights of Ineos. The Court was of the view that Ineos' application for an injunction was not too premature.

Test for an interim injunction

The greater part of the relief was sought on the basis that Ineos reasonably apprehended the commission of unlawful acts in the future and they wished to have the protection of orders from the Court to prevent those acts from being committed. The Court applied the test as to whether it was satisfied that the risk of infringement of Ineos's rights causing loss and damage was both imminent and real. A permanent injunction can only be granted if the claimant proved at trial that there will be an actual infringement of his rights unless the injunction is granted. However, this case involved an interim injunction and not a final injunction. The evidence established that the protestors had taken direct action against other fracking operators and there was no reason why they would not do the same to Ineos in the future; in fact it was unlikely. The Court considered that this risk was real and imminent despite the drilling not commencing for weeks or even months in the future given that the protestors had in other cases began their protests even before planning permission had been obtained and long before fracking had commenced.

Human Rights

The Court was also of the view that the Defendants' rights of freedom of speech and assembly under Articles 10 and 11 of the European Convention had to be balanced against Ineos' and others rights to peacefully enjoy their property and possessions under Article 1 of Protocol 1.

Comment

Landowners and leaseholders should consider applying to the Court for an injunction to prevent protestors and alike from entering their land if protestors have previously carried out similar protests and there is a real risk they will or might do so imminently.

This article first appeared in our Real Estate Bulletin - January 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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