Arla Foods Ltd v Persons Unknown, 2024 WL 03597159 (2024)
87. As explained below, I consider that the order sought satisfies that test. Right to access the public highway 88. Lord Atkin explained this right with characteristic succinctness in Marshall v Blackpool Corporation [1935] AC 16 at 22 :
"The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so…whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access; just as the right of access is subject to the rights of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway."
89. An interference with the right is actionable without proof of loss, and if an interference does cause a loss, then damages can be obtained. 90. Taking the last part of the extract from Marshall above, in my judgment the key question here is the qualification of the right of access by the rights of the public. In Ineos Upstream Ltd v Persons Unknown [2017] EWHC 2945 (Ch) , Morgan J considered at [107] the interaction of the adjoining landowner's right of access to the highway with the protestors' right to a reasonable use of the highway. He assumed in favour of the protestors that if they were carrying on a reasonable use of the highway which impacted on the rights of the claimants in that case to access the highway, that would not be an infringement of the right of access to the highway. 91. While Morgan J did not have to decide the point, because the claimants in that case put their case on the basis of public nuisance rather than the landowner's right to access the highway, in my judgment that is correct and I should take the same approach here. The rights of the public include the right to reasonable use of the highway. Therefore, applying the principles set out in Marshall , a reasonable use of the highway by members of the public will not constitute unlawful interference with the adjoining landowner's right to access the highway. 92. It was submitted by the Claimants that the decision of Julian Knowles J in High Speed Two (HS2) Limited v Four Categories of Persons Unknown & Monaghan & Others [2022] EWHC 2360 (KB) at [196] suggests that no balancing act is to be applied between the right to access the highway and the Article 10 and 11 rights of the defendants, because in a claim under this cause of action much, if not all, of the relevant protest is taking place on private land. I do not take Julian Knowles J to be going so far in [196]. Rather he simply put forward the fact that in the case before him much if not all of the protests had taken place on private land as being the first of three reasons why there was no unlawful interference with Articles 10 and 11 on the facts before him. Further, here, the Claimants rely on the obstruction of the highway, such as by protestors mounting and affixing themselves to vehicles on it, as future acts that would breach their right to access the highway, and that acts are not taking place on private land. 93. However, as set out below, I consider that the apprehended actions would amount to a violation of the Claimants' right to access the highway whether or not such a balancing act is to be applied. Therefore, I do not consider it necessary to consider further the question of whether such a balancing act needs to be applied. Test for a precautionary injunction against named defendants 94. The test for a precautionary injunction against named defendants is as set out by Marcus Smith J in Vastint Leeds BV v Persons Unknown [2019] 4 WLR 2 at [31] , as applied in Koninklijke Philips NV v Guandong Oppo Mobile Telecommunications Corp Ltd [2022] EWHC 1703 (Pat) (Koninklijke') and approved by the Court of Appeal in London Borough of Barking and Dagenham & Ors v Persons Unknown & Ors [2022] EWCA Civ 13 at [83] . That requires the following two questions to be asked and answered in the affirmative: i) Is there a strong probability that unless restrained by injunction the defendant will act in breach of the claimant's rights?
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