The issues considered
These proceedings successfully appealed multiple injunctions ordered against “persons unknown” in the High Court.
These injunctions were ordered to prevent unlawful protest action against the Ineos Group, known for fracking and shale gas extraction activities. Injunctions were also ordered against two named defendants preventing future demonstrations. The injunctions  prohibited:
- Trespassing on sites
- Interfering with private access to the sites
- Interfering with public rights of way such as blocking the highway
- Interfering with roads or motor vehicles in a manner which is dangerous
Morgan J in the High Court placed great importance on private property rights and the protection of those rights against possible demonstrations. Breach of the ordered injunctions could lead to sanctions including imprisonment and fines. No orders were made against the two named defendants, Mr Boyd and Mr Corre, in the High Court but they obtained permission to appeal the width of the “persons unknown” orders in the Court of Appeal.
The Court of Appeal’s decision
The Court granted the appeal.
– Injunctions 3) and 4) were ruled to be unlawful due to their lack of clarity and broadness. They were discharged by the Court.
The Court held that Morgan J had failed to appropriately assess whether Claimants would be likely to obtain the relief sought at trial or not, applying section 12(3) of the Human Rights Act 1998 when Article 10 of the European Convention of Human Rights, the right to freedom of expression, is engaged .
– Injunctions 1) and 2) were maintained pending reconsideration from the High Court.
The Court directed reconsideration of whether the injunctions should be granted in light of section 12(3) as above, and if they were to be continued, what time limits are appropriate .
The Court cautiously listed the conditions that would be necessary to grant relief in the context of future injunctions of this kind against persons unknown :
a) A sufficient and imminent risk of a tortious act being committed such as to justify the application of this ‘quia timet’ relief
b) The impossibility of identifying the perpetrator of said tort unless they were restrained
c) The likelihood of giving notice of the injunction and the method of doing so to be set out in the order itself
d) The terms of the injunction are not so wide as to prohibit lawful conduct and refer directly to the potential tortious act
e) The terms of the order are sufficiently clear to allow persons who could be affected by the injunction know what they could not do
f) For there to be clear temporal and geographical limits to the injunction
In this case, the first three elements of the test were easily satisfied for all potential injunctions, but issues with the last three elements caused the failure of injunctions 3) and 4).
– The Court held with regards to element d) that the right to freedom of peaceful assembly and protest should not be curtailed by fear, except for where the potential tort to be committed was clear .
– On element e) it was held that the terms of the order were too wide to be sufficiently clear, specifically phrases such as “unreasonably obstructing the highway.” 
– On element f) it was held that, whilst the injunctions granted were limited geographically, they were not limited temporally, which was not acceptable .
In this judgment the Court has declared that the rights to legal protest outweigh the rights of the Claimants to pre-planned precautions against protest. The Court stated that it would not restrict ordinary and legitimate rights of protest by sanctioning the phrasing “without lawful authority or excuse” into the wording of injunctions .
The Court recognised the danger of the potentially “chilling effect” of “persons unknown” injunctions to operate against every person until eventually they would be breached, and how this could effectively stifle protest all together for fear of the consequences .
The Court also reaffirmed  that it is lawful to bring injunctions against persons whose identity is not yet known, following the reasoning of Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd  1 WLR 1633.
Additionally, the Court of Appeal has provided guidance for the lower courts in analogous cases involving “persons unknown” injunctions in the context of environmental process. Broadness and uncertainty are incompatible with Article 10 of the Human Rights Act 1998 and thus are key considerations to make when granting applications for relief. This guidance will be critical as large corporations seek to prevent protest in an environmentally-conscious society.
Upon their successful initial application for the injunctions in the High Court, the Ineos Group professed that they had obtained “the most wide-ranging injunction of its kind secured by the shale industry.” A trend towards similar companies seeking broad injunctions with harsh penalties has emerged in recent times, impacting rights to protest and free speech. In October 2018 the Court of Appeal quashed manifestly excessive prison sentences imposed against antifracking protestors- the first prison sentences imposed for environmental protest since 1932.
The decision of the Court of Appeal in this case has worked to curb the protection available to property owners before any tort is actually committed upon their land. The Court has placed the protections granted by the Human Rights Act squarely within the considerations necessary to grant this type of broad injunction in the future. In light of increasing tensions between environmental activists and fracking companies, this would seem to be a timely intervention.
By Lameesa Iqbal