Introduction

The case of National Highways Ltd v Persons Unknown & Ors ([2023] EWCA Civ 182) represents a significant judicial consideration regarding the intersection of environmental activism and public infrastructure regulation. National Highways Limited (NHL), acting as the highways authority for the Strategic Road Network (SRN) under the Highways Act 1980, sought to restrain the activities of Insulate Britain (IB) protesters. The protests, which began on September 13, 2021, involved demonstrators actively obstructing highways integral to the SRN, thereby causing substantial public disruption and posing risks to public safety.

The core issue revolved around whether NHL could obtain a final anticipatory or quia timet injunction against both identified IB protestors and unidentified persons ("persons unknown") to prevent ongoing and future acts of trespass and nuisance. The initial judgment by Bennathan J partially dismissed NHL's application, leading to an appeal by NHL to the England and Wales Court of Appeal (Civil Division).

Summary of the Judgment

In the initial proceedings, NHL pursued summary judgment and injunctions to cease the disruptive protests by IB. The judge granted a final injunction against 24 defendants who were found in contempt of court, denying final injunctions against the remaining 109 named defendants and persons unknown, but provided interim injunctions to prevent immediate but not permanent disruptions.

On appeal, the Court of Appeal identified significant legal errors in the lower court's handling of the summary judgment application and the criteria for granting final injunctions. Notably, the judge erroneously required NHL to prove that each defendant had already committed the torts of trespass or nuisance, rather than addressing the anticipatory nature of the injunctions where the torts were threatened but not yet committed. This misapplication of legal standards led the Court of Appeal to overturn portions of the original decision, allowing NHL to obtain final injunctions against the 109 named defendants and persons unknown, subject to certain amendments.

Analysis

Precedents Cited

The judgment extensively engaged with several key precedents shaping the legal framework for injunctions against protestors. Notable among these were:

• Ineos Upstream Ltd v Persons Unknown ([2019] EWCA Civ 515): Established the approach to granting injunctions against unknown persons, emphasizing clarity in prohibited actions and ensuring proportionality.
• Vastint Leeds BV v Persons Unknown ([2018] EWHC 2456 (Ch); [2019] 4 WLR 2): Provided guidance on the standards for final injunctions, particularly concerning causative threats rather than completed torts.
• Canada Goose Retail Ltd v Persons Unknown ([2020] EWCA Civ 202): Highlighted the necessity for injunction terms to be precise and directly related to the torts threatened.
• London Borough of Barking and Dagenham v Persons Unknown ([2022] EWCA Civ 13; [2022] 2 WLR 946): Addressed the Court's jurisdiction to grant injunctions against unknown persons under section 37 of the Senior Courts Act 1981.
• DPP v Ziegler ([2022] AC 408) and DPP v Cuciurean ([2022] EWHC 736 (Admin)): Examined the balance between protest rights under the Human Rights Act 1998 and public order expectations.
• City of London Corporation v Samede ([2012] PTSR 1624): Positioned political and economic views at the pinnacle of protected expressions under the European Convention on Human Rights.

Legal Reasoning

The Court of Appeal critiqued the lower court's legal reasoning, pinpointing a fundamental misunderstanding of summary judgment and anticipatory injunction standards. The key erroneous assumption was that NHL needed to demonstrate actual tortious acts by each defendant to secure a final injunction. This conflicted with the anticipatory (quia timet) nature of the injunctions, which focus on the imminent threat rather than past actions.

The appellate court clarified that, under CPR Part 24, summary judgment for an injunction should assess whether defendants have any real prospect of successfully defending the claim. The absence of defenses or engagement by 109 named defendants strengthened NHL's position that these defendants were unlikely to contest the injunction successfully. Furthermore, the court emphasized that injunctive relief does not require completed torts but requires a credible threat thereof.

Additionally, the court addressed the applicability of Barking concerning injunctions against persons unknown, determining that such injunctions were within the court's jurisdiction under current legislation, despite previous apprehensions raised by earlier appeals.

Impact

The decision in National Highways Ltd v Persons Unknown & Ors has profound implications for future cases involving protest-induced disruptions. By affirming the ability to secure final injunctions against both named and unknown defendants based on the imminent threat of specific torts, the judgment empowers authorities to preemptively address potential public nuisances without necessitating proof of past wrongdoing.

This precedent balances the enforcement of public order and infrastructure integrity against the rights to protest, refining the legal tools available to manage civil disobedience. It also underscores the importance of clear judicial standards and adherence to procedural protocols, particularly regarding summary judgments and the evaluation of defense avenues.

Complex Concepts Simplified

Conclusion

The appellate decision in National Highways Ltd v Persons Unknown & Ors underscores a pivotal evolution in the legal management of public protests, especially those impacting critical infrastructure. By rectifying the lower court's misapplication of summary judgment standards and affirming the validity of final injunctions against both identified and unidentified protestors, the Court of Appeal has fortified the mechanisms through which authorities can preemptively safeguard public order and infrastructure integrity.

This judgment reinforces the judiciary's role in balancing the rights to protest with the imperatives of maintaining public safety and access to essential services. It delineates clear legal boundaries and procedural expectations, ensuring that injunctions are granted based on credible threats rather than completed acts of wrongdoing. As such, it sets a robust precedent for future cases involving environmental activism and other forms of civil disobedience, providing a structured approach to mitigating disruptions while respecting fundamental rights.