Trespassers Beware! – issues of identification, service and enforcement of Injunctions against “Persons Unknown”

Injunctions directed against “Persons Unknown” and particularly how they should properly be identified and served continue to cause difficulties for companies and government bodies involved in projects or industries that are being targeted by environmental activists. Two recent decisions have considered these issues of identification, service and enforcement when the constituent members of the protesting group is not certain or changes.

The outcome of these cases re-enforce the need to ensure proper service (whether by traditional or alternative means) as it is that, rather than detailed knowledge of the terms, which is key to establishing a potential breach for enforcement purposes. They also provide guidance on the balance to be struck between the interests of the parties, enabling protests whilst protecting business interests.

Elliot Cuciurean v Secretary of State for Transport and High Speed Two (HS2) Limited

Background

An injunction had been granted in March 2020 in connection with the HS2 high-speed rail network project, against (amongst others) “Persons Unknown” prohibiting such persons from trespassing on specified areas of land which were held for the purposes of the project defined as “the Crackley Land” for the purposes of the court order.

The court order granting the injunction set out the steps to be taken to effect good service, including affixing copies to objects such as posts, gates, fences and hedges at conspicuous locations around the area. These requirements were complied with.

Mr Cuciurean was not a named defendant to that claim but it was claimed by the respondents that Mr Cuciurean fell within the definition of “Persons Unknown” and had wilfully breached the injunction on at least 17 occasions by entering and remaining on the Crackley Land.

Sitting in the Chancery Division His Honour, Marcus Smith J, found Mr Cuciurean in contempt of court by breaching the injunction in 12 respects and sentenced him to six months in prison (suspended for 12 months) for each breach to run concurrently. Mr Cucierean appealed the decision on four separate grounds in respect of liability and separately in respect of the sanction.

Decision

The Court of Appeal dismissed the liability appeal on all four grounds in full but upheld the appeal in part in relation to the sanction. It was held that the sanction was greater than necessary or proportionate and was reduced to a sentence of three months in prison, suspended for 12 months. In respect of the liability grounds of appeal, the Court decided as follows:

1. Did the 12 incidents occur on the relevant land?

Mr Cuciurean argued that the perimeter fence marking the boundary of the land to which the injunction related was demarcated wrongly and did not correspond to the plan attached to the order. The Court of Appeal agreed that there was a theoretical possibility of a mismatch, but considered that the Chancery Division’s interpretation of the plan was legitimate and therefore accepted the respondents’ case was made out.

2. Did the appellants need to prove “something more” than service of the order?

It was found that the authorities indicated that “(1) in this context, “notice” was equivalent to “service” and vice versa; (2) the Court’s civil contempt jurisdiction was engaged if the claimant proves to the criminal standard that the order in question was served, and that the defendant performed at least one deliberate act that, as a matter of fact, was non-compliant with the order; (3) there is no further requirement of mens rea, though the respondent’s state of knowledge might be important in deciding what action to take in respect of the contempt.” It was noted that whilst the notion that a person might be held in contempt of court when he was not shown to have actual knowledge of the relevant order was uneasy the situation was unlikely to occur often and if it did then the court had jurisdiction to impose no penalty.

3. Did the appellant have sufficient knowledge or notice of the order?

Mr Cucirean argued that he could not have had sufficient knowledge to justify a finding of contempt unless he knew (1) the fact that he could not enter “the Crackley Land” and what this meant; (2) the map of Crackley Land; and (3) the penal notice. The Court of Appeal considered this was not the correct approach – the law does not require proof of actual knowledge, but rather the test is one of “notice” and it was sufficient that the steps reasonably taken as regards service (and as set out in the order) could reasonably have been expected to bring the order and the substance of its terms to Mr Cucirean’s notice. There was no need for detailed examination of plans or for knowledge of the penal notice: “It would be enough for such a person (a) to know that there was a Court order in existence, prohibiting him from entering certain land; and (b) to enter on land in the knowledge that it fell within the scope of the prohibition.”

4. Checking requirements in the order

Whilst the judge could not be sure that the requirement to check no less frequently than 28 days that the orders and signs affixed to conspicuous locations around the land remained in place had been complied with, the Appeal Court agreed that it did not mean there had been no proper service because this requirement was not a condition of service.

Commentary

Whilst in this case there was evidence to suggest the Defendant had actual knowledge of the order, it is a reminder to would be trespassers that so long as the order is properly served, detailed knowledge of the precise terms of the order may not be required to satisfy the test of “sufficient knowledge” of the order for there to be a breach of the order.

UK Oil & Gas plc (previously known as UK Oil & Gas Investments plc) and others v Persons Unknown and Others

Background

The claimants were oil and gas companies that were seeking to extract oil and gas at a site called “Horse Hill” in Surrey. This had attracted protestors. Some of the protests involved trespass to property, obstruction of access to and from site and “lorry surfing”. Proceedings were raised against Persons Unknown and several named defendants.

Initially an injunction was sought against Persons Unknown in six different categories. Defendants 7 to 12 (local residents) joined the action as any order granted may impact their activities. Friends of the Earth then joined as Defendant 13.

An interim injunction was granted on 3 September 2018 against Defendants 1 to 4 (being Persons Unknown in different categories). It was then varied and reinstated against them and Defendants 14 to 16 on 27 November 2018. At this stage in proceedings, the Chancery Division were asked to determine (among others) certain applications regarding joining various additional defendants (as many as 116) or seeking to apply the existing injunction against some of them

Following the applications being made, matters had developed to the extent that at the hearing, the Claimants applications had been scaled back resulting in them seeking permission to add 12 defendants in total and to vary the order so it now sought relief aimed at three specific categories of protestor (comprising a combination of named individuals and “Persons Unknown”) based on their actions or activities in and around the Horse Hill site

It was argued by the claimants that continued protection of the site was required and they relied on 3 separate events, with witness evidence, to support their applications

Decision

Following consideration of the development of case law in this area and objections by some of the Defendants, the Court considered the application to join Defendants and vary the injunction. It was decided that it was appropriate to join Defendants 17 to 23 (except 21 who the claimants were no longer pursuing) due to the alleged activities of each of those Defendants on the dates stated in the evidence given and their activities at earlier dates, the events of which supported the initial injunction.

The Court was satisfied that, due to the revised scope of the injunction, a fair balance had been struck between the rights of individuals to protest and the rights of the Claimants to protect their land and legitimate activites. The revised order did not prevent standing outside the site or walking slowly in front of or around the site, provided that protestors do not physically prevent or obstruct vehicles or people coming in or out. Given the action that had already been taken by the Defendants the Court was satisfied that there was a sufficiently real and imminent risk of further wrongful action being taken if this protection was not granted.

Commentary

The Court recognised that the protestors had genuine concerns for the environment arising out of the claimant’s activities and was keen to ensure that the right balance was struck between the parties competing rights.

This case highlights the need for claimants to ensure the injunction they seek is narrow is scope to only situations that without the injunction there is a sufficiently real and imminent risk of wrongful action being taken and not be overly wide so as to impact unjustly the rights of others.

Service of the original orders had been carried out by alternative methods, including Facebook and uploading documents to a publicly available Dropbox, as well as providing hard copies to protestors on site. At this further stage, the Court was not asked to determine any further issues regarding alternative methods of service but the Court acknowledged that if alternative service is to be used, “that alternative service must be in a form that can reasonable be expected to bring the proceedings to the attention of the proposed defendant”.

The judgment in UK Oil & Gas plc (previously known as UK Oil & Gas Investments plc) and others v Persons Unknown and Others [2021] EWHC 599 (Ch) can be found here.

The judgment in Elliot Cuciurean v Secretary of State for Transport and High Speed Two (HS2) Limited [2021] EWCA Civ 357 can be found here.