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Fracking, protestors and injunctions against 'persons unknown': Court of Appeal offers guidance amid controversial context

In the recent case of Boyd v Ineos Upstream [1], a hotly anticipated appeal involving fracking protestors, the Court of Appeal has provided guidance on the highly topical subject of bringing injunctions against ‘persons unknown’.  Walker Morris’ specialist Real Estate Litigator David Manda explains and offers some practical advice.

Why is this case important?

Granting injunctions against unidentified persons – even when it is not in the context of environmental or other protests – is controversial. That is because an injunction is a remedy which has serious ‘teeth’.  An injunction is an order, issued by the court, for persons to do or not to do something.  It contains a penal notice, which means that if an affected person breaches the injunction, he or she is in contempt of court and can be imprisoned.  The severity of the potential consequences of an injunction means that it is vitally important that the order should only capture those persons/potential defendants and those particular circumstances that it absolutely needs to.  Otherwise, there is a risk that innocent people could get caught in the cross fire.

However, there are myriad scenarios in which businesses, landowners or claimants generally may urgently need to prevent, and/or to protect themselves from, loss or damage which may be (or may have been) inflicted by wrongdoers who are, as yet at least, unidentified. One such scenario is (as here) where a landowner fears that protestors may cause damage or disruption to persons or property and wishes to pre-emptively take action to prevent that.  Another is where a person has been a victim of, say, cybercrime/hacking and wishes to restrain the dissipation of stolen funds [2].  To enable those claimants to take the action they need to, the courts of England and Wales have acknowledged the possibility of bringing court proceedings for immediate injunctions against ‘persons unknown’.

Boyd v Ineos Upstream provides crucial guidance from the Court of Appeal as to how such proceedings should be framed.

What happened in Boyd v Ineos Upstream?

Fracking operators (Ineos) wished to commence fracking exploration on their sites. Significant protests had previously occurred against other fracking operators, and so Ineos, along with the freehold owners of their sites, successfully applied to the High Court, in 2017 [3], for various quia timet [4] injunctions to prevent unlawful acts (including trespass, public nuisance, harassment and conspiracy to injure by unlawful means) by as yet unidentified protestors.

Evidence submitted by Ineos to the High Court largely related to protests involving serious instances of trespass, including protestors locking themselves to structures, setting up of protest camps and blockading or obstructing access to fracking sites, resulting in court proceedings for possession and injunctive relief. Ineos also relied on the facts that acts of trespass by protestors requires protracted and expensive clear-up operations and have the potential to pose a serious risk of harm to protestors and others.

A key matter to be considered by the court, however, was the granting of interim injunctions against unidentified persons. Ineos argued that issuing court proceedings against ‘persons unknown’ was an established and permissible way to proceed; and further contended that they did not need to show that it was impossible for them to ascertain the names of the protestors who may be involved in the conduct subject to the injunctions. The High Court agreed and granted injunctions against four out of five of the defendants referred to as groups of ‘persons unknown’, so to restrain potentially unlawful acts of protest against fracking activity.

What did the Court of Appeal decide?

The case was appealed on the basis that the injunctions were too broad in scope; improperly brought against persons unknown; and unlawfully interfered with the protestors’ rights to freedom of expression and assembly under the Human Rights Act 1998 and Article 10 of the European Convention on Human Rights.

After considering prior relevant case law [5], the Court of Appeal stated that it was “too absolutist” to say that a claimant can never sue persons unknown unless they were identifiable when the claim form was issued; and that there was no conceptual or legal prohibition against obtaining an injunction against persons unknown who were not currently in existence but may come into existence when the prohibited tort was committed.  The Court of Appeal did warn, however, that the courts should be cautious about granting injunctions against unknown persons, as it is difficult to assess the reach of such an injunction in advance.

The Court of Appeal therefore “tentatively” offered the following principles pursuant to which an injunction against unknown persons could properly be granted:

  1. there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief
  2. it is impossible to name the person[s] likely to commit the tort unless restrained
  3. it is possible to give effective notice of the injunction and for the method of such notice to be set out in the order
  4. the terms of the injunction must correspond to the threatened tort and are not so wide that they prohibit lawful conduct
  5. the terms must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do
  6. the injunction should have clear geographical and temporal limits.

Applying the principles, and allowing the appeal in part, the Court of Appeal discharged those injunctions that purported to prevent unknown people from taking part in protests which may affect Ineos’ suppliers, because they were too wide and uncertain, but upheld injunctions relating to trespass at a few sites. The latter were also remitted for the High Court judge to reconsider the temporal limit and Human Rights aspects.

What are the practical implications?

The Ineos case is an encouraging example of the courts adopting a common-sense and flexible approach.  It emphasises the importance of, and seeks to address, the balance between providing a workable remedy for victims or potential victims of wrongdoing committed by or likely to be committed by as-yet unidentified persons on the one hand; and, on the other, precluding the granting of orders which are too wide, too uncertain and which may therefore have unintended and undesirable consequences.

As well as bearing in mind the Ineos principles for framing applications against persons unknown, potential injunction applicants/claimants should consider the following legal and practical points.

  • An injunction is an equitable remedy. That means it is underpinned by fundamental fairness and awarded by the court at its discretion, as opposed to a legal remedy that is available as of right to a successful claimant.  When exercising its discretion, the court will apply certain key principles of equity, including:
    • the equitable maxim of clean hands. That is, anyone looking to equity for a remedy must be free of wrong doing him/herself
    • the doctrine of ‘laches’ (delay). Delay can cause unfairness in itself and so an equitable claim may be barred if it is not brought within a timely manner.
  • The American Cyanamid [6] guidelines are also used by the courts when deciding whether to grant an injunction. The guidelines consider:
    • whether there is a serious, arguable case to be tried
    • whether damages would be adequate as a remedy
    • the ‘balance of convenience’ (i.e. which party would suffer the greatest prejudice were an injunction to be granted or not to be granted)
    • whether the status quo should be maintained.
  • In relation to quia timet relief and/or any injunction against ‘persons unknown’, applicants/claimants should focus on the specific actions or risks against which they are trying to guard, and should not try to obtain any wider injunction than is strictly necessary. Applications and notices should use clear, plain English wording and, where possible, should not include legal jargon or terminology.
  • Ineos confirms that it is possible to obtain quia timet injunctions in respect of multiple sites and that evidence pertaining to different sites, even sites not owned by the applicant, can be relied upon.
  • Applications for injunctions usually arise in pressured situations and there is often real urgency. Remaining calm throughout the process can help to keep stress levels, and mistakes, to a minimum; as can ensuring that you have an expert team around you.

For further advice, please do not hesitate to contact David Manda or any member of Walker Morris’ Litigation & Dispute Resolution department.


[1] [2019] EWCA Civ 151
[2] See our briefing on a recent push payment fraud and freezing injunction case for further information and advice.
[3] Ineos Upstream Ltd v Persons Unknown [2017] EWHC 2945 (Ch)
[4] that is, anticipatory/pre-emptive injunctive relief
[5] in particular, Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch) and Hampshire Waste Services Ltd v Intended Trespassers [2003] EWHC 1738 (Ch)
[6] [1975] UKHL 1

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