Protestors are increasingly targeting critical national infrastructure, food and defence manufacturers and other large businesses, so it’s important for businesses to understand the key steps to take in the event of protestor disruption. Don’t leave it until protestors are already on site and the business is in crisis mode.

In this article we’ll be looking at:

• Current case law on newcomer injunctions against persons unknown; and
• What businesses can do to manage the impact of protestor action at sites.

Current legal position

The legal landscape for these injunctions has shifted over recent years, with courts granting “newcomer” injunctions against persons unknown. The Supreme Court decision in Wolverhampton CC v London Gypsies & Travellers [1], confirmed that courts have the power to grant injunctions against unnamed, unknown protestors (or, “persons unknown”), including individuals who can’t be identified when the injunction order is made, and who haven’t yet threatened to infringe the claimant’s rights, but may do so in future (so called “newcomers”).

Prior to Wolverhampton, the law relating to newcomer injunctions was unsettled. In practice, claimants were required to show that newcomers had, through their conduct, effectively become defendants to existing proceedings and were therefore bound by the injunction. The Supreme Court has now removed that requirement. Instead, it has confirmed that, in limited circumstances, courts may grant contra mundum injunctions – orders that bind the world at large, rather than only named parties.

While the Supreme Court confirmed in principle that newcomer injunctions may be available in protest cases, it didn’t engage in a detailed analysis of the specific challenges that may arise in that context. Importantly, the Court emphasised that contra mundum newcomer injunctions represent an exceptional remedy and will only be granted where a compelling justification can be clearly demonstrated.

The law has continued to evolve following Wolverhampton, with a number of high-profile inunctions being granted. This includes developing case law in relation to how the courts deal with the continuation of injunctions, generally considered by the courts on an annual basis to review and consider whether injunction should remain in place.

Key implications include:

• Pre-emptive injunctions can be granted against individuals not yet identified or present.
• These are particularly relevant for infrastructure operators or food or defence manufacturers facing threats of protest from groups who may not yet have arrived on site.
• Courts have allowed innovative, alternative methods of service, including QR codes and via reference to a webpage, to ensure injunctions are enforceable even against unidentified individuals.
• At the annual review of newcomer injunctions, courts will consider whether there has been a material change in circumstances since an order was made.

What can businesses do to prepare in case protestors target sites?

Most of the work required to prepare for a civil injunction against protestors can be done in advance. This includes preparing relevant court documents explaining the nature of the business and the ownership of the land (which can often be complicated on large sites where there may be multiple occupiers and leases/sub-leases). Identifying the legal boundaries and ownerships of sites, especially entrances/exits, can be vital, and can be carried out in advance.

The worst time to start to prepare is when protestors are already on site and the business is in crisis mode, trying to keep operations running. Protests regularly occur outside of usual office hours, so having draft court documents already to hand can save significant time and free-up decision-makers to manage operational impact.

What should businesses do when protestors turn up on site?

1. Immediate engagement with the police is key.
2. Instruct expert legal advisers from the outset. Legal specialists will be able to provide strategic advice in the event the police fail to act swiftly, including on the potential to obtain a High Court injunction. Being prepared in advance (as mentioned above) will avoid delay at this stage.
3. Identify precisely where the protestors are and what they are doing. Are they on private land? If so, who is the freeholder/leaseholder of that land? Are they on an adopted road? What are the entrances/exists to the site? Have the protestors caused, or are they causing on an ongoing basis, any physical damage? Monitor, and retain evidence of, what’s happening on the ground

Dealing with protestors: How we can support you

Our dispute resolution specialists are experienced and expert in responding quickly and effectively to protestor action, including preparing for urgent High Court action to obtain injunctions to restrain and remove protestor disruption.

We’ve been closely involved in the development of this area of law and have successfully obtained injunctions in several high-profile cases including for Drax Power Station and Arla.

We can work with you to prepare a tailored ‘Protestor Pack’, so your business is proactively prepared as far of possible, in anticipation of an incident.

We can provide staff training and internal policy/procedure guidance on the protestor injunction process and what steps to take to minimise disruption in the event of an incident.

When protestors do strike, we can provide urgent, strategic advice, and manage the court process to swiftly seek an injunction where necessary.

For further information and advice, please contact Nick McQueen or James Damarell.