THE HONOURABLE MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- McGivern
91. That is the case here. Ultimately, my duty as the Judge is to assess the evidence presented on the contempt application. In this case, the principal issue in dispute is whether Ms McGivern knew of the terms of the Injunction as a result of being permitted to review it on PC Shailes’ laptop. I accept Ms McGivern’s evidence on this. I have explained why I have not found PC Shailes’ evidence to be reliable. I am not bound to reject Ms McGivern’s evidence as a result of the cross-examination of PC Shailes. It was not Ms McGivern’s case, in cross-examination, that PC Shailes was lying. Her case was that his evidence was not reliable. It may be that strict adherence with the rule may have suggested that Mr Underwood should have put one further question in cross-examination, to the effect that PC Shailes was mistaken in his recollection, but that is as far as the point goes. Ms Bolton did not, in fact, seek permission to recall PC Shailes to have Mr Underwood put this question to him. Perhaps that was a recognition of the futility of seeking to do so. 92. I accept Ms McGivern’s evidence that, when she acted as alleged on 4 May 2022, she did not know that there was an injunction or its terms. At its highest, and as a result of conversations she had with protestors at the site, Ms McGivern wanted to find out whether there was an injunction in place. She attempted to ascertain from staff of the First Claimant whether there was any such order. They did not assist her. Her inquiry of the security officer (see [60] above) is consistent with that state of mind. It does not demonstrate knowledge of the Injunction and its terms. It may be that the actions of Ms McGivern in obstructing the two vehicles were not, as she accepted, her ” finest hour ”, but in my judgment she was simply standing her ground in the hope that someone would come and respond to her inquiries. Objectively judged, Ms McGivern’s alleged breaches of the Injunction were all trivial. She obstructed two vehicles for probably no more than 20 seconds on each occasion. She was in the exclusion zone, and she set foot, for a very short period, on the First Claimant’s land. 93. At the hearing, I asked Ms Bolton whether the Claimants’ contention was that, if I accepted Ms McGivern’s evidence as to her lack of knowledge of the Injunction, then applying Cuciurean the Court should impose no penalty. Ms Bolton agreed. If the governing principles are those set out in Cuciurean , then, based on my findings, the Court would impose no penalty on Ms McGivern, as the Claimants accept. If the law is as stated in Barking , and the Gammell principle operates only upon those who knowingly breach an injunction, then the contempt application fails. I do not need to resolve this dispute because, for the reasons set out in this judgment, I have decided simply to dismiss the contempt application. 94. I have found it very difficult to understand the motive(s) behind the Claimants’ tenacious pursuit of Ms McGivern and the way that the contempt application has been pursued. First there is the delay in commencing the proceedings. Then there is the failure to send any form of letter before action to Ms McGivern giving her the opportunity to give her response. Next, the Claimants’ response to the evidence of Ms McGivern, provided first in a position statement and then in a witness statement, both verified by a statement of truth. The contempt application was pursued in the face of this evidence. The Claimants did so on a somewhat speculative basis relying upon the evidence of PC Shailes (inaccurately trailed first in the email from Mills & Reeve to the Court on 15 July 2022 – see [39] above) and which was only obtained after serving a witness summons, on the eve of the Contempt Application. Finally, the Claimants persisted in a cross-examination of Ms McGivern in which allegations of
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