Ineos Upstream Ltd and others v Persons unknown

Relevant background:

Ineos has plans to pursue shale gas exploration using the process known as “hydraulic fracturing” or “fracking.

Fracking is a controversial technique which has attracted much public debate. A number of other companies whose plans to frack are more advanced than Ineos’ have been the subject of significant protest events although, so far, protestor activity against Ineos itself has been limited.

In July 2017 Ineos obtained an injunction to prevent a range of unlawful conduct at or near its sites. That injunction was obtained without notice to the anti-fracking protestors.

The parties returned to court in November to debate whether or not that injunction should remain place.

Facts of the case:

The injunction which Ineos had obtained back in July 2017 prohibited “persons unknown” from (1) trespassing on a number of Ineos’ sites,(2) blockading the entrance to those sites, (3) obstructing the public highway so as to prevent access (4) committing acts of harassment or (5) conspiring to cause Ineos harm by other unlawful means. Some of the tactics used by protestors against other fracking companies which were specifically relied on by Ineos in support of its application were “slow walking”, “lock-ons”- the practice by which protestors attach themselves to each other or a immoveable object to obstruct access, and “lorry surfing”- the tactic of climbing onto vehicles so that it becomes unsafe to drive them.

As well as challenging the judge’s decision to grant the initial injunction without prior notice to the protestors, they objected to its continuation on Human Rights Act grounds, citing articles 10- the right to freedom of expression and Article 11 - the right to freedom of assembly.

Having heard detailed arguments on both sides (including a total of 30 witness statements) the judge concluded:

The decision to grant an injunction without notice to the protestors was justified. Had the defendants been given notice of the application it might have led them to take the very action which the injunction was intended to prevent.

The injunction was justified notwithstanding that unlawful activity against Inoes specifically was thus far limited and it relied upon the experiences of other fracking companies. The evidence said Morgan J, clearly showed that the protestors objected to the whole industry. What had happened to others in the past would happen to Ineos if an injunction was not put in place.

Having agreed to an injunction against trespass, Morgan J spent some time considering exactly what conduct might amount to an obstruction of the highway. He concluded that a protest or demonstration on the public highway could in the right circumstances be a reasonable use of that highway. The question was what activity crossed the line from reasonable to unreasonable obstruction. Activities such as slow walking and lock-ons were indeed an unreasonable use and justified an injunction.

There was a balance to be struck between upholding the rights enjoyed by the protestors under Articles 10 and 11 of the Human Rights Act 1998, and those of private landowners to carry on their businesses. In this case however the location of the protestors activities appeared to have been chosen as the best place to interfere with Ineos’ activities rather than to express opinions to the general public. In those circumstances the balance, said Morgan J, should be struck in favour of Ineos to uphold its private property rights.

The one aspect of the interim injunction which the judge decided should not continue was that which precluded acts of harassment in breach of the Protection from Harassment Act 1997. There were likely to be strongly expressed objections to fracking which could lead to abusive and insulting comments to Ineos. But behaviour which is annoying and irritating arises in these situations and does not amount to harassment. The difficulty then was to determine exactly where the boundary lay. Morgan J was concerned that it was not possible in this case to make an order which enabled the Defendants to know exactly what conduct was and was not prohibited.

  • This decision is noteworthy for the fact that the judge was persuaded to grant an interim injunction to Ineos before it has experienced serious disruption on the basis of the tactics used by protestors at other anti-fracking sites operated by different companies. Companies anticipating that they may be the subject of unwelcome attention should consider their options in advance as this decision reinforces that specific disruption can be avoided.
  • It also confirms that the court may be willing to grant interim injunctions without notice if it can be persuaded that alerting the defendants to the application would trigger the very unlawful conduct which the injunction is seeking to prevent.
  • The decision follows a series of recent landmark appeal court cases which have considered the balance between the competing rights of landowners and those of protestors who have set up temporary encampments on public land in order to campaign for causes (anti-war / anti-capitalist / anti-fracking) in which they believe. The Ineos decision provides useful guidance as to how this balance should be struck where protestors seek to restrict the lawful use by others of the public highway.
  • In particular the practices of slow walking, lock-ons and lorry surfing which have become familiar tactics of protestors are specifically identified as unlawful obstructions which could justify an injunction.
  • Fracking is essentially banned in Scotland so a similar set of facts is unlikely to occur north of the Border. That said, the Scottish courts have proved that they are willing to grant similar orders against named and unnamed protestors both during and in advance of a protest.