Ineos Upstream Ltd & Ors v Persons Unknown & Ors  EWHC 2945 (Ch)
The English High Court has issued very helpful guidance on the circumstances in which it is prepared to grant injunctions against potential protests in advance of unwanted protestor activity taking place. While this is an English case in which the court considers English legislation and principles, it seems likely that the Scottish courts would arrive at the same result, albeit by a slightly different route.
The pursuers were either subsidiaries of the Ineos group or owners of various sites in which Ineos had interests which they sought to protect. Fracking had been carried out, or was to be carried out, at all of the sites – unlike Scotland, fracking remains lawful in England (subject to various regulatory restrictions). However, fracking remains controversial and has generated significant opposition and protests. While Ineos had not been the subject of protestor activity they sought interim injunctions and other orders against unknown individuals to try and prevent protests taking place. The injunctions were initially granted without any of the defenders being in court and the case was continued to allow them the opportunity to be heard. The defenders were described as “persons unknown” and the orders sought were to prevent them from, for example, entering or remaining without the consent of the claimants on [various land and buildings, roads etc]. Two specific individuals were also named as defenders.
Ineos pointed to a significant volume of evidence to support its argument that there was a “real and imminent risk” of interference if the orders were not granted. Reference was made to the history of protests and disruption at other fracking sites and the difficulties experienced by operators in such circumstances. The type of disruption experienced by other operators included protestors standing still or lying down on roads to block vehicles and obstruct traffic, chaining themselves to each other and various equipment, climbing onto haulage vehicles, targeting suppliers and impeding site workers.
The defenders relied on the rights of freedom of expression and freedom of peaceful assembly set out in the Convention for the Protection of Human Rights and Fundamental Freedoms and argued these effectively “trumped” the rights of Ineos and the site owners. The Court concluded that a court considering whether to grant a final injunction (this being an application for interim injunction) would take the view that the rights of the fracking operators would prevail. The court stated, “The protestors are doing much more than expressing their opinions about the undesirability of fracking. They are taking direct action against the fracking operators in an attempt to make them stop their fracking activities”.
The court was persuaded that, in light of the evidence presented, it should grant the interim injunctions.
- The Scottish courts have demonstrated on many occasions that they are willing to grant orders against unnamed, or unknown, protestors as long as the individuals are sufficiently identifiable. That is unlikely to pose a problem once a protest takes place. The courts have also granted pre-emptive orders against "umbrella" organisations in advance of protests where the claimant could establish a "reasonable apprehension" of illegal activity. The rise of social media means that it can be easier to identify potential protestors in advance.
- The discussion in the case about the balancing of the rights of freedom of expression and peaceful assembly provide welcome clarity as to the weight to be given to operators rights to exercise their lawful activities. The Scottish courts are likely to take a similar approach.
- The procedure for applying for interim interdict in Scotland is generally faster than in England. Detailed witness statements, which are time consuming to prepare, are not required.
- Interim interdict is sought at the risk of the party who seeks it. In other words, if an interim interdict is granted but later recalled the defender may be entitled to claim damages for any loss arising from the order having been made.
- A party concerned that interim interdict may be sought against them can lodge caveats in court. This is a simple process which will entitle them to be notified of the hearing. If there is no caveat, they will not be aware that the order is being sought.