THE HONOURABLE MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Free the MBR Beagles
individuals. Such a course so obviously carries with it the risk of serious injustice that it must be rejected. I do not read HHJ Simon’s judgment in the Thurrock Council case (paragraph [53]) as endorsing such an approach in respect of identified defendants, but insofar as his remarks might be thought to do so, I would respectfully disagree. In a protest case, adoption of an approach that aggregated the behaviour of a group of protestors, and calibrated the Court’s response based on the worst behaviour that could be proved against some of them, would risk contravening the principle that an individual protestor does not lose the right to freedom of peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual in question remains peaceful in his or her own intentions or behaviour: see Canada Goose -v- Persons Unknown [2020] 1 WLR 417 [99(viii)]. 68. The Claimants have chosen to bring a claim against the named Defendants in these proceedings. Each named Defendant is entitled to a fair adjudication of the claim made, and evidence presented, against him/her, including in respect of any claim for interim remedies, irrespective of the claim made against “Persons Unknown”. The submission that, in order not to “ neuter ” the effectiveness of a “Persons Unknown” injunction, the same terms must be applied to identified defendants (irrespective of the evidence against those defendants) comes perilously close to a justification for a grant of a contra mundum order; an order prohibiting certain conduct generally, whoever does it. Whether a contra mundum injunction could be granted on the facts of this case is an issue not without controversy. I have previously expressed the view that the circumstances in which contra mundum injunctions can be granted is very limited: see LB Barking & Dagenham [224]-[238]. But the simple point is that the Claimants have never sought a contra mundum order. As such, the Court must apply the principles that govern ordinary inter partes litigation. 69. Even had I been satisfied that the Claimants’ evidence demonstrated that they were likely to succeed at trial in demonstrating that some restriction was justified, I would have refused to grant a variation to the injunction in the terms sought by the Claimants. (1) First, any injunction I would have granted would have been limited to that which the evidence justified. The Claimants’ evidence would, at best, only justify a restriction on activities that were targeting Impex, not all “Protected Persons”. (2) Second, injunctions that have the potential to interfere with lawful protest must be framed in precise terms. It would have been necessary to pay close attention to the terms of the restriction in terms of “ compelling or coercing ”. These words have, no doubt deliberately, been chosen to reflect the criminal offences under ss.145-146 Serious Organised Crime and Police Act 2005 (“SOCA”) (see discussion in Injunction Judgment [41]-[45]). The difficult issue, that the Court would have to confront and resolve when determining the terms of any injunction, is that it is not unlawful simply to protest and campaign for an organisation, like the First Claimant or Impex, to cease its operations. It only becomes unlawful if the tactics employed in support of the campaign are themselves unlawful (e.g. trespass or harassment). Therefore, even if the Court were satisfied that an injunction ought to be imposed, the object must be to ensure (so far as possible) that the terms of any injunction prohibit only the unlawful behaviour whilst preserving the right of protestors to campaign for the closure of the target of the protest.
425
Made with FlippingBook interactive PDF creator