Forgive us our trespassers…

There has been a blizzard of protestor injunction cases in 2024

Trespass has been at the front of the minds of the Supreme Court recently in its awaited decision on whether wild camping is permissible in Dartmoor, but the flakes from another of its decisions last midwinter have been falling like snow in the world of protester injunctions.

Whilst a landowner or occupier can bring a simple possession claim against an unidentified group of people already trespassing on their land, it is only the protection of an injunction that can help prevent the trespass before it can even occur. This is particularly useful where the land involves high-risk activities, such as the extraction of natural resources or major transport hubs. These sites are often targeted by environmental protestors and the law is evolving rapidly to balance the interests of landowners with freedom of expression and the right to protest.

The case of Christmas past

This time last year, amidst the excitement of Secret Santa and decorating our office with paper elves, there was another exciting discussion going on… the Supreme Court had given us the gift of newcomer injunctions. The case was Wolverhampton City Council and others v London Gypsies and Travellers and others (2023). It involved 38 local authorities who had obtained injunctions between 2015 and 2020 in the High Court against "persons unknown", as a preventative measure against Travellers and Gypsies who may otherwise set up camp on their land. Many of the injunctions were granted for fixed periods, so as they were nearing expiry, the local authorities started applying to the High Court to extend or vary them. However, the High Court held that "persons unknown" injunctions could only be granted on a short, interim basis pending the hearing for a final injunction. The judge decided that unless a potential trespasser had been identified and had an opportunity to defend a permanent injunction, it would not bind them. To put it another way, any newcomers who set up camp or threatened to do so after a final injunction was granted would not be in breach of it and the relevant local authority would need to start fresh proceedings for an interim injunction against "persons unknown" and then seek to identify persons who could be bound by a permanent injunction.

Twelve local authorities appealed to the Court of Appeal, which overturned the High Court. On a further appeal by London Gypsies and Travellers, the Supreme Court upheld the Court of Appeal and approved the use of newcomer injunctions – a new type of injunction which "potentially apply to anyone in the world". Their potential use goes much wider than the Travelling community, and organisations such as Friends of the Earth were particularly involved in the case due to implications for protestors. As an injunction is an equitable remedy, a court dealing with an application for a newcomer injunction must consider that it is just and convenient on the facts to grant it having regard to:

1. Is there a compelling need to protect civil rights or enforce public law that is not adequately met by any other remedies?
2. Are there procedural safeguards in place to advertise the application widely so that those likely to be affected by it are given a fair opportunity to defend it? Or, if it is granted, are safeguards in place to inform newcomers of its existence and their right to apply to court to have it varied or set aside, without having to show that circumstances have changed?
3. Has the applicant complied with their strict duty of full and frank disclosure - to research and disclose to the court any matter which, in their absence, a newcomer might raise to oppose the making of the order?

If granted, newcomer injunctions should be limited so that they are proportionate in terms of duration or geographical area.

The cases of Christmas present

Valero Energy

This year started with a newcomer injunction granted in January in the case of Valero Energy Ltd and others v Persons Unknown (2024). The Valero companies, part of a large petrochemical group, had suffered trespass, blocked access, protest and public threats to their sites by unknown individuals associated with environmentalist groups such as Just Stop Oil, Extinction Rebellion and Insulate Britain. They also had the benefit of police intelligence about future protests and so applied for summary judgments and a newcomer injunction. The High Court described a newcomer 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 so must be used only with due safeguards in place." The Court, having reviewed the rulings in the Wolverhampton case and combined them with rulings in previous cases, identified no fewer than 13 guidelines which had to be met before the injunction could be granted. In particular, the court was concerned that:

1. The "persons unknown" must be identified by reference to their prohibited conduct and geographical boundaries.
2. The prohibitions must be set out in clear words and not framed in legal terms, such as "tortious".
3. The duration and geographical boundaries must be limited to what is reasonably necessary to protect the claimant from the future feared activity.
4. The injunction must include a mechanism for review as a final injunction against persons unknown can never be totally final.

The court found that each guideline had been met and ordered an injunction for five years with annual reviews.

UK Airports

Environment protestor groups turned their attention to UK airports in the spring. A journalist infiltrated a meeting of Just Stop Oil in March and reported that they had announced a "summer of disruption" campaign involving cutting fences and climbing on to aeroplanes. They launched fundraising pages for the "most radical action yet". In early June, the plans started to become reality as Extinction Rebellion protestors blocked the runway at Farnborough Airport, followed by the arrest of a group of protestors at Gatwick Airport with suitcases full of bandages.

Between June and October, at least eight major airports successfully obtained newcomer injunctions against persons unknown. The injunction relating to Gatwick Airport, upon which we acted, was granted after the High Court considered the 13 guidelines identified in the Valero case and considered they had all been met. It was not granted for a fixed period, but instead must be reviewed every 12 months. The "persons unknown" were described as those whose "purpose is or includes protesting about fossil fuels or the environment who enter or remain on [Gatwick airport] (whether in connection with the Just Stop Oil campaign or Extinction Rebellion campaign or otherwise)".

University of London

In November, an injunction was granted against three named individuals and three categories of persons unknown in The University of London v Harvie-Clark and others (2024). Protests and camps had been set up against alleged support by the School of Oriental and African Studies of military operations in Gaza, and then against the disciplinary action faced by students involved in the protests. The University had obtained and enforced a possession order after the first camp had been set up, but the protestors simply relocated to a new area. The second camp was dispersed after enforcement agents were instructed and a third camp set up on land owned by the local authority instead.

The University has a Code and Visitor Regulations that allows for planned protests but objected to uncontrolled protests that disrupted the users of the University, caused damage and raised health and safety and security concerns.

Applying the guidelines, the Court ordered an injunction against unplanned protests in specified areas with a review in 12 months. The judge quoted Mr Justice Ritchie who said that newcomer injunctions are “different beasts from old fashioned injunctions against known defendants which need to be taken to trial. They do not “hold the ring pending trial”. They are an end in themselves for the short or the medium term".

The case of Christmas future?

As the boundaries of newcomer injunctions continue to be tested in 2025, we are keeping one eye on the application made by the Friends of the Earth to the European Court of Human Rights (EHCR) in March 2024. The application was made following the Supreme Court's judgment in the Wolverhampton City Council case and seeks a ruling from the ECHR that newcomer injunctions contravene the Convention rights of freedom of expression and the right to a fair trial.  If that succeeds, it could mean January blues for landowners and local authorities…

Come back tomorrow to open the door to Day 19 of our advent calendar to find out everything you want to know about BESS. And no, that's not the name of our office elf - it stands for "battery energy storage systems" and we'll cover the key points for investors.