Analysing the decision in Shell UK Ltd v Persons Unknown, specifically considering the requirements for an injunction/ interdict against persons unknown in England compared to Scotland, the balance of the right to protest with the right to carry out lawful business, and the Aarhus Convention defence advanced in the Shell case.
Shell UK Ltd v Persons Unknown (the "Shell Case")
On 5 December 2024, the English High Court granted a final injunction against "persons unknown" and 13 named defendants. The case involved three separate claims by Shell Group entities, which were dealt with together.
Shell's three claims sought to protect its property from the actions of environmental protestors. The claims were in relation to its Haven Oil Refinery in Essex (the "Haven Claim"); its Shell Centre Tower in London (the "Tower Claim"); and Shell Petrol Stations (the "Petrol Stations Claim").
The named defendants were only named in respect of the Petrol Stations Claim, with the defendants in the other cases being persons unknown. Two of the named defendants in the Petrol Stations Claim defended the action on the grounds that:
- An injunction was a disproportionate interference with their rights under the European Convention on Human Rights (ECHR).
- The disruption to Shell was proportional to the harm caused by Shell in its business activities.
- The Aarhus Convention protects "environmental defenders" from persecution and excessive use of the law.
Injunctions, interdicts, and persons unknown
What is an injunction against persons unknown?
An injunction is an English court order which prohibits someone from engaging in conduct that amounts to a legal wrong. It is used to protect against future harm or infringement of rights. The legal wrong can be a civil wrong and need not be criminal. Breaching an injunction is treated as contempt of court and can have criminal sanctions.
In England, where the identity of a person or group is unknown, a party can bring an injunction action against "persons unknown". There was some uncertainty whether a final injunction could be granted against a sub-class of persons unknown, known as newcomers.
Newcomers are defined as those "who are not identifiable at the time when the order is granted, and who have not at that time infringed or threatened to infringe any right or duty which the claimant seeks to enforce, but may do so at a later date". Newcomers can be distinguished from the typical class of persons unknown who can be identified but whose names are not known. In November 2023, the Supreme Court held that the English courts have the power to grant final injunctions against newcomers and persons unknown generally.
Injunctions against persons unknown remain common in protestor cases. In these actions, a claimant is asking the court to grant a prohibitive order that doesn't only prohibit an individual person or defined group from engaging in identified conduct, but applies to everyone and prohibits the specific conduct set out in the injunction. This led the English High Court to describe such an injunction as "a nuclear option in civil law akin to a temporary piece of legislation affecting all citizens in England and Wales for the future".
The approach of the English courts
Granting an injunction is a discretionary decision and the test the court will consider is whether "it appears to the court to be just and convenient to do so".
The English courts have also created a procedure that should be followed when considering an injunction against persons unknown. This was set out in Valero Energy Ltd v Persons Unknown and was followed in the Shell Case:
- There must be a civil cause of action identified.
- There must be full and frank disclosure by the party seeking the injunction.
- There must be sufficient and detailed evidence before the court to justify the court granting an injunction.
- There must be no realistic prospect of a defence. This includes both evidence put before the court and evidence that it is reasonably foreseeable that persons unknown might put before the court, for example ECHR arguments.
- There must be a compelling justification for the injunction.
- The court must consider the balancing exercise set out in DPP v Ziegler (the "Ziegler Case") on whether persons unknown's ECHR rights are engaged. This is discussed further below.
- Damages must not be an adequate remedy for the party seeking the injunction.
- The persons unknown must be clearly identifiable by reference to the conduct to be prohibited and defined by geographical boundaries.
- The terms of the injunction must be clear and should not include technical legal terms. If the injunction prohibits conduct which is lawful when viewed on its own, there must be no other proportionate means for the party seeking the injunction to protect its rights.
- The prohibitions in the injunction must mirror the conduct complained of or feared as set out in the claim.
- The injunction must be defined by clear geographical limits.
- The duration of the final injunction should only be such as is necessary to protect the part seeking the injunction's legal rights.
- All reasonable steps must be taken to notify persons unknown of the proceedings and the final injunction.
- There must be a right to apply to set aside or vary the injunction.
- The injunction must include a review of the injunction in the future, with the regularity of such reviews depending on the circumstances.
The approach of the Scottish courts
The approach in the Scottish courts to interdict actions (the Scottish equivalent of an injunction) is generally similar. However, the competency of an interdict against persons unknown, including newcomers, is less clear in Scotland.
In June 2019, in Transocean Drilling UK Limited v Greenpeace Limited and Persons Unknown (the "Transocean Case"), the Court of Session granted an interim interdict against persons unknown who had boarded and occupied a mobile offshore oil rig without authorisation.
The interdict was served on the persons unknown verbally, by a messenger-at-arms fixing copies of the service documentation to various places on the rig and by using a rope to pass the documentation to the persons unknown. Both Greenpeace, the named defender, and the persons unknown declined to defend the action. The court subsequently granted a permanent interdict in December 2019 in the same terms.
There is limited case law in Scotland on this topic. In an English case against persons unknown, service of the injunction can be done alternatively, including by placing copies of the proceedings in noticeable places. However, in the Scottish case of Oliver & Son Ltd, Petitioners, the court noted that it was incompetent to grant an order against persons who have not been served with proceedings. Although, where persons are identifiable but their names are unknown and therefore can be served on, for example by handing service papers to them directly in the case of protestors, then this is still competent.
On this authority, it appears that in Scotland a case will turn on whether protestors are identifiable and can thus have proceedings served on them. It appears that this position does not go as far as in England, where an injunction against newcomers who cannot be identified but may at a later stage breach the order is valid. The Transocean Case was notably not against newcomers but rather identifiable persons who were on the oil rig but whose names were not known.
However, there is no reported case where the Scottish courts have considered an interdict action in the context of newcomers and, as such, the position is not clear. It is possible that a Scottish court may be persuaded by the principles of English cases, extending up to the Supreme Court level, and decide to follow that approach.
Balancing the right to protest with the right to carry out lawful business
An interdict/ injunction case will not always engage ECHR rights, however, where the action is in relation to protestors then the ECHR is often relevant. The right to protest falls within Article 10 (Freedom of Expression) and Article 11 (Freedom of Peaceful Assembly).
The right to property is also a Convention right and the English courts in the Shell Case and in Cuciurean v Secretary of State for Transport have held that and that the protection of property is a legitimate aim.
Generally, the courts will not justify trespass onto another person's land on the basis that a person was exercising their right to protest under Articles 10 and 11 of the ECHR. Articles 10 and 11 are qualified rights and are therefore "subject to limitations or restrictions which are prescribed by law and necessary in a democratic society". In other words, an injunction/ interdict can legally restrict the application of these rights in some circumstances.
The UK Supreme Court in the Ziegler Case considered interferences with ECHR rights. They held that a careful balancing exercise must be carried out and that any interference, which includes interference with the right to protest, must be "necessary and proportionate".
Proportionality in this context was distilled into a four-part test:
- The aim must be sufficiently important to justify interference with a fundamental right.
- There must be a rational connection between the means chosen to interfere and the aim.
- There must be no less intrusive measure to interfere.
- A fair balance must be struck between the rights of the defendants and the rights of others.
Application to the Shell Case
The aim of the injunction was the protection of Shell's right to carry on their lawful business. The named defendants argued that the risk Shell's business poses to the global environment outweigh the infringements caused to Shell's rights by the protests. However, the courts' approach is that "It is not for the court... to adjudicate on the important underlying political and policy issues raised by these protests". Claimants are entitled to ask the court to protect their legal rights to carry out lawful business, but the court stated that it is a question for parliament to introduce any changes or restrictions on the legality of the industry.
The UK Supreme Court has acknowledged the climate crisis and that it is a "virtual certainty" that extracted fossil fuels will be burned and released as greenhouse gases into the atmosphere. Despite this, no additional protections can be given by the court to a cause in the public interest if the cause is against a lawful business in the UK.
The rational connection was established as the injunctions sought had the capability to deter protestors and protect Shell's rights.
The only option in these circumstances was an injunction action. The substance of the injunction was judged to be the least intrusive measure since the injunctions only prohibited future acts of unlawful protest and did not attempt to restrict peaceful, lawful protest, including any protest nearby, but not on, the sites in question.
The fair balance was judged to have been struck in this decision on the basis that the injunctions protected Shell's rights as far as necessary in terms of geographical limits and the specific conduct prohibited, but did not go any further.
The English High Court held that the injunctions would be a proportionate interference with the protestors' ECHR rights in order to protect Shell's right to carry out its lawful business.
The Aarhus defence
The UK is a signatory to the Aarhus Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters.
A defence put forward by the named defendants in the Petrol Stations Claim relied on Article 3(8). This states that "Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement".
The court in the Shell Case noted that Article 3(8) had not been incorporated into UK law despite the UK being a signatory to the convention. Article 3(8) therefore does not create a right that can be relied upon by protestors. The court in the Shell Case held that the relevance of this Article is that it is a factor to consider when the court balances the question of what is "necessary and proportionate" in the interference with ECHR rights rather than providing a defence in and of itself.
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.