IN THE HIGH COURT OF JUSTICE THE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES CHANCERY DIVISION
Case No. BL-2023-000713
BETWEEN:
JOCKEY CLUB RACECOURSES LIMITED
Claimant/Applicant
and
(1) DANIEL FRANK PETER KIDBY (2) PERSONS UNKNOWN ENTERING THE AREA DESCRIBED BELOW AS THE “RACE TRACK” ON THE DAY OF A “RACING FIXTURE”, EXCEPT AT “CROSSING POINTS” WITH “AUTHORISATION”, AS DESCRIBED BELOW (3) PERSONS UNKNOWN ENTERING AND/OR REMAINING ON ANY “CROSSING POINTS” WITHOUT “AUTHORISATION” ON THE DAY OF A “RACING FIXTURE”, AS DESCRIBED BELOW (4) PERSONS UNKNOWN ENTERING THE AREA DESCRIBED BELOW AS THE “PARADE RING” WITHOUT “AUTHORISATION” ON THE DAY OF A “RACING FIXTURE”, AS DESCRIBED BELOW (5) PERSONS UNKNOWN ENTERING AND/OR REMAINING ON ANY PART OF THE AREAS DESCRIBED BELOW AS THE “HORSES’ ROUTE TO THE PARADE RING” AND/OR THE “HORSES’ ROUTE TO THE RACE TRACK” WITHOUT “AUTHORISATION” ON THE DAY OF A “RACING FIXTURE”, AS DESCRIBED BELOW (6) PERSONS UNKNOWN I NTENTIONALLY OBSTRUCTING THE “HORSE RACES”, AS DESCRIBED BELOW (7) PERSONS UNKNOWN INTENTIONALLY CAUSING ANY OBJECT TO ENTER
ONTO AND/OR REMAIN ON THE “RACE TRACK” WITHOUT “AUTHORISATION” ON THE DAY OF A “RACING FIXTURE” , AS DESCRIBED BELOW
(8) PERSONS UNKNOWN INTENTIONALLY ENDANGERING ANY PERSON AT THE LOCATION DESCRIBED BELOW AS THE “EPSOM RACECOURSE” ON THE DAY OF A “RACING FIXTURE”, AS DESCRIBED BELOW (9) MR BEN NEWMAN
Defendants/Respondents
AUTHORITIES BUNDLE FOR A DISPOSAL HEARING LISTED IN A TWO-DAY WINDOW ON 8 AND 10 JULY 2024
1
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PAGE NUMBER
TAB
AUTHORITY
JUDGMENTS IN THESE PROCEEDINGS
1.
Jockey Club Racecourse Limited v Kidby and Others [2023] EWHC 1811 (Ch) – Approved Judgment
3-14
2.
Jockey Club Racecourse Limited v Kidby and Others [2023] EWHC 2643 (Ch) – Approved Judgment
15-25
CASE LAW
3.
High Speed Two (HS2) Ltd v Persons Unknown [2024] EWHC 1277 (KB), [2024] All ER (D) 11 (Jun)
26-54
Exolum Pipeline Systems Ltd v Persons Unknown [2024] EWHC 1015 (KB)
4.
55-61
5.
Valero Energy Ltd v Persons Unknown [2024] EWHC 134 (KB), [2024] All ER (D) 23 (Feb)
62-99
6.
Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47; [2024] 2 W.L.R. 45
100-169
7.
DPP v Ziegler [2022] A.C. 408
170-222
8.
Canada Goose v Persons Unknown [2021] WLR 2802
223-248
9.
Cuadrilla Bowland Limited & Ors v Persons Unknown [2020] 4 WLR 29
249-269
10.
270-273
Birmingham City Council v Afsar [2019] EWHC 1619 (QB)
LEGISLATION
11.
274-281
Byelaws made by The Epsom & Walton Downs Conservators 2013
12.
282
Section 12 of the Human Rights Act 1998
13.
283-312
Epsom and Walton Downs Regulation Act 1984
14.
313-328
Sections 236-7 of the Local Government Act 1972
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Case No: BL-2023-000713 Neutral Citation Number: [2023] EWHC 1811 (Ch)
IN THE HIGH COURT OF JUSTICE BUSINESS & PROPERTY COURTS OF ENGLAND & WALES BUSINESS LIST (ChD)
7 Rolls Building Fetter Lane London EC4A 1NL
BEFORE: SIR ANTHONY MANN sitting as a judge of the High Court 26 th May 2023 BETWEEN:
JOCKEY CLUB RACECOURSE LIMITED
APPLICANT
- and - (1) MR DANIEL KIDBY (2) PERSONS UNKNOWN
RESPONDENTS
Legal Representation Mr Alan Maclean KC (instructed by Pinsent Masons LLP ) on behalf of the Applicant Mr Daniel Kidby (First Respondent) attended in person but did not seek to address the court
Approved Judgment Judgment date: 26 May 2023
“This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.”
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Sir Anthony Mann: 1.
This is an interim application in which the Claimant, which is a Company owned wholly by the Jockey Club, seeks injunctive relief in order to permit the smooth running of the Derby, which is to take place a week tomorrow on June 3 rd . On that day, the Derby, which is as everyone knows an annual race, is to be run and it features three year old colts who are, by their age and nature, highly strung and relatively inexperienced, at least compared with the sort of horses one sees in the Grand National. 2. The claimant company fears that disruption organised by a loose association known as Animal Rising, which has or claims to have animal welfare at its heart, will disrupt the race in order to achieve publicity and to diminish sympathy for horse racing amongst the general public. It is feared that they will do so by such tactics as invading the racetrack itself or conceivably by interfering with or alarming or frightening horses as they move about before the running of the race. 3. The Claimant therefore seeks an injunction to restrain such interference. It seeks the injunction against what I will loosely call for the moment two classes of people. The first is one known person, a Mr Daniel Kidby, who has been identified as someone who is perhaps central to the organisation of this loose association, insofar as it has an organisation, and who it is said has threatened to be one of those who will attend in order to disrupt the race. 4. Mr Kidby has attended court today, but although he is the First Defendant and the only known defendant in the case, he has indicated that he wishes merely to attend and not to make representations because he considers that will reduce potential costs to which he might otherwise be liable. He has therefore sat and listened to the proceedings, but not otherwise participated. 5. The other class of persons who are defendants in these proceedings are various types of “ persons unknown ” , described in various ways mainly related to areas of the racecourse in relation to which it is feared that they will interfere. I will come to the terms of that in due course. 6. The further background to this matter is as follows. The Derby is run on Epsom Downs. Epsom Downs has a curious status. The Claimant Company is the freehold owner of large areas of Epsom Downs. Those areas include the area of the racetrack itself, which is an important matter for reasons to which I will come in a moment, and also areas which comprise the grandstands, stables, paddocks, parade ring and other ancillary areas. 7. However, the public has a general right of access to Epsom Downs under a piece of legislation known as the Epsom and Walton Downs Regulation Act 1984. The access given to the public is over a large area of the freehold owned by the Claimant Company, and in particular, it covers in general terms, the area on which the Actual racetrack on which the Derby is run is situated. 8. However, the rights of the public in that respect are regulated by the Act, to which I have just referred. Furthermore, the Act confers rights on what is described as the
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Company, being rights to which the Claimant now justifiably lays claim. Because of the interaction of those rights, this case has more subtleties in considering rights and remedies than might otherwise be thought to be the case, and I will come back to them. 9. There is also a set of bylaws made by the Epsom and Walton Downs Conservators, a body whose existence is provided for by the 1984 Act. Those bylaws contain restrictions on what the public can and cannot do on Epsom Downs and they include a restriction on causing a nuisance. Mr Alan Maclean KC, who appears for the Company, said that he did not rely on anything in those bylaws as such as giving him rights on which he can rely for present purposes, though as will be apparent some of the relief is framed in terms of contravention of them. 10. Because of the odd physical nature of and title to Epsom Downs, the racecourse is vulnerable to greater degrees of invasion than might otherwise be the case. The whole area of the racecourse is not securely fenced. There are rails along the edge of the racetrack to delineate it, but there is no clearly delineated part or delineated area on the ground which necessarily secures the area of the racecourse from incursion by members of the public. 11. The public have access to the area which is loosely enclosed by the racetrack itself, but under the Act, only across certain crossing points, Nonetheless, those crossing points are normally open and provide a route, in theory, onto the racetrack, but as I will come to, the public or not allowed on to that. Suffice it to say, for present purposes, the absence of a clearly delineated, fenced area around the area of the whole racecourse, means that the site is vulnerable to incursions by persons who are not supposed to be there, at least on race days. 12. Horses are therefore vulnerable to incursions on the racetrack itself. They are also vulnerable to distraction and potentially some form of frightening and/or attack as they move around the areas ancillary to the racetrack; that is to say, the areas from the stable to the parade ring and from the parade ring to the course, but those are not areas which are securely fenced off from members of the public. A persistent member of the public would and could have access to those areas if he or she wished to do so, even if they have been legitimately admitted by a ticket through one of the permitted public entrances. 13. There are times when the horses are making their way from the parade ring to the track when their passage is protected by men holding ropes, but that is, at that point, the only delineation of the horse area from the human area. There is therefore plenty of theoretical scope for protesters who wish to disrupt the meeting to have access to areas of the racecourse where that disruption can take place. 14. There is clear evidence of potential disruption to the Derby race meeting from members of Animal Rising. I have seen plenty of evidence of that and I am quite satisfied of that threat, and indeed, Mr Kidby and his associates are almost proud of their professed intention that the race meeting should be disrupted, although I should record that Mr Kidby professes in an email that he has not decided whether he himself will participate or not. 15. There have been announcements of an intention to disrupt on a website. The Daily Mail has carried an apparently justified story indicating that members of the association have proclaimed their clear intention to disrupt. The number of 1,000
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potential disruptors has been mentioned. Animal Rising was behind the very recent attempts to disrupt the Grand National meeting at Aintree at which, as a matter of clear public knowledge, protesters scaled fences with barbed wire or razor wire on top and invaded the actual race course, the racetrack itself. And there is evidence that the Association has also sought to disrupt other race meetings, including one taking place at Ayr. 16. The Animal Rising website proclaims an aim to have 1,000 protesters at the Derby meeting. In my view, there is absolutely no doubt there has been an incitement of persons to disrupt the Derby race meeting and a very serious risk that a significant number of members of the Association or those associated with them or sharing their views will attend for that purpose. 17. The disruption may or may not involve sitting down on the course. It may or may not involve locking on or gluing. The Claimant has no way of knowing what is actually planned, but there is no doubt in my mind that there is a real risk of that. 18. The Association has been offered an area within the racecourse for peaceful protest, but has declined that offer. The dangers of disruption hardly need spelling out. Ss well as disrupting the event itself and causing delays, there is a fear that the protesters will invade areas where horses actually are or will be with danger to equine and human life and limb. 19. As I have already pointed out, and as is clearly vouched in the evidence, the horses that participate in the Derby are young horses who are inexperienced and have been likened by a vet to adolescents on testosterone..They are twitchy, they are nervous, and they will be hyped up before the event. If there are attempts to interfere with them it is unknown how some or all of them will react. They may react by bolting, by backing into people, by throwing jockeys, and/or by somehow damaging themselves. There is, in my view, no doubt that that is a very serious risk. 20. I have received evidence from a vet as to all these matters and as to the serious risk of danger to the horses if disruption of the type which is feared takes place, it might of course be a little ironic that those behind Animal Rising will be prepared to risk such things, and they may have an answer to the point, but there is no doubt that there is risk to the horses. There is also risk to the life and limb of jockeys, which is obvious. There is also a risk to life and limb of members of the public who may be affected by horses over whom there is less than full control. I accept all that evidence. 21. I also accept that there is potential financial risk if the meeting is disrupted and there are delays in the race where races are postponed. The Derby race meeting is attended by tens of thousands of people and it is broadcast to millions and its reputation will hardly be enhanced if there is unjustified disruption by protesters or anyone else. 22. The Claimants seek injunctive relief to prevent that. I should describe it because it is necessary to do so in order to show that it is targeted and that the relief sought is proportionate and in order to explain the limits of the relief which is sought. The Claimant does not claim some overall single form of blanket injunction, such as restraining protesters from invading the course or anything like that. The relief sought is targeted at specific areas of the racecourse area. 23. I will read the terms of the injunction sought in full so that its scope can be appreciated:
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“2) Until judgment or further order, on the day of any racing fixture at the Epsom Racecourse, which for the avoidance of doubt includes Oaks Day on 2 June 2023 and Derby Day on 3 June 2023, the Respondents must not: 1) Enter the racetrack except at authorised crossing points. 2) Enter and/or remain on any Crossing Points without authorisation. 3) Enter the parade ring without authorisation. 4) Enter and/or remain on any part of the horses ’ route to the parade ring without authorisation. 5) Enter and/or remain on any part of the horses' route to the racetrack without authorisation. 6) Intentionally obstruct the horse races contrary to section 2(2)(e) of the bylaws. 7) Intentionally cause any object to enter into and/or remain on the racetrack without authorisation that is contrary to section 2(2)(e) of the bylaws. 8) Intentionally endanger any person that the Epsom Racecourse contrary to section 2(2)(e) of the bylaws .”
24. Since, as I have already indicated, Mr Maclean does not rely on the terms of the bylaws themselves, it is not clear to me that the word in relation to the bylaws is appropriate, but it is in my view unnecessary to be concerned about that when one analyses the nature of the claim to which I will come later. 25. Some of the terms in those paragraphs need explaining. The Crossing Points, an expression which has capitals, are appropriately defined in the order and they described ten points at which the public are normally authorised to cross the racetrack itself to gain access to the area in the centre of the racetrack from the area outside of it. Normally the public are free to cross those whether or not there is a race meeting unless and until closed under the Act. The concern is to make sure that the protesters do only enter into the area inside the track at the authorised crossing points, if they enter it at all. 26. The second paragraph refers to entering on or remaining on any crossing points without authorisation. That is because during the running of the race, the Claimant is entitled to close off crossing points to stop people crossing the track. Remaining on a crossing point would involve effectively sitting down or remaining on the track and being about to be run down by horses. 27. The parade ring is a parade ring of the kind which is a familiar feature of racecourses. I need to say no more about that. The reference to the horses ’ route to the parade ring is a reference to a route which is delineated on photographs which are to be annexed to the order, and is what it sounds like; that is to say, a particular route from the stables to the parade ring along which route, of course, they would otherwise be vulnerable to interference by a protester because it is not fenced off and secure. 28. The “ horses ’ route to the racetrack ” is again an expression which speaks for itself, but in order to make clear what it is, that is another route which is set out clearly in a pphotograph, which will be annexed to the order.
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29. The racetrack might be thought to be a self-explanatory expression, but it is actually defined in the order by yet another photograph to be annexed. 30. That, then is the relief sought. 31. I turn to the basis of the claim. At the heart of the claim are two bases. The first is freehold title of the Claimant to the land in question. That has been established by witness statement evidence. It is said that the Company is the registered proprietor of the freehold of the relevant areas. I have not seen or been shown the registered title, but the title numbers are set out and there does not seem to be any dispute of which I am aware about the title. That would found, in the normal way, a claim to restrain a trespass. I am satisfied that there is sufficient freehold title to sustain a trespass claim. 32. In addition, the Company has rights under the 1984 Act to which I should turn briefly. Although as I have indicated the public has rights of access to Epsom Downs, which includes large areas of the racecourse, which would normally allow a member of the public freedom of access which would be capable of interfering with a race meeting, the public's rights of access are regulated by the Act and the Company is given certain express rights under it. 33. The Act is an extremely detailed one which provides inter alia for the constitution of a body of Conservators, and I do not need to go into that. The relevant provisions, which I can by and large describe rather than read into this judgment, are as follows. 34. Section 4 provides that members of the public shall have a right of access on foot over the Downs. That is the whole of Epsom Downs or the relevant parts of Epsom Downs, which would include large areas of the racecourse. That is the start of thepublic rights, which will need some control if they are not to conflict with the carrying on of racing. 35. Section 11 provides for bylaws to be made and I have referred briefly to those bylaws already. Section 17 includes important provisions relating to the holding of race meetings on the racecourse, which, as I understand it, have been conducted there for 200 years or more. It provides, and I will quote this time:
“ 17) Notwithstanding anything contained in this Act or any bylaws made under this Act, the Company may hold and conduct races at authorised meeting on the Downs. ”
And the Act then goes on to indicate various steps which are open to the Company to facilitate the holding of race meetings. I have already indicated that the Company within that section means, for present purposes, the Claimant, within the definition contained in section 2. 36. Amongst the rights given to the Company are the right under subsection 1(b): “ [To] Exclude members of the public from the lands hatched blue on the deposited map ”… …d uring various periods either side of the race meeting. Those areas I am told include areas with which I am concerned. 37. Subsection 3 is an important provision. It provides as follows:
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“3) during the racing period and the preliminary period, the Company may control … the access over the Downs to the racecourse and the paddock .” And that gives the Company clear rights to control the public access. 38. Subsection 5 provides that the Company may exclude members of the public from walking on the racecourse except for at certain crossing places, which are then provided for, and therefore, by implication, it allows the members of the public to have the benefit of crossing places, but subsection 16 provides:
“ Subject to the provisions of paragraph 5) above, the Company may during the racing period keep closed the crossing places referred to in that paragraph. ”
39. I do not need to read any other provisions of the Act. It is sufficient to record that combining the Company's rights as freeholder with the rights given under that Act, the Company has very significant rights to control the public's rights, what would otherwise be the public ’s full rights of access to Epsom Down. 40. Based on those rights, Mr Maclean says his client is entitled to the injunctive relief to which I have referred in order to protect those rights and to protect his client from the consequences of infringement of those rights. 41. The crossing points, which he is entitled to close except when his clients need to do so, are covered by the injunction and the injunction prevents abuses of the crossing points. Controlling the public's access to areas in which the horses need to go in order to get from stable to parade ring and parade ring to the course are rights and controls which his clients are entitled to impose in the law of trespass and, so far as those areas are within the areas covered by the Act, under the Act as well. Insofar as anyone has had proper admission via a ticket, it cannot sensibly be said that that they are entitled to abuse the contractual rights to enter by stepping beyond those rights and interfering with horses, and that would be a trespass as well. I am satisfied as to that. 42. Based on all that material, I am satisfied that were the acts which the Company fears to take place, they would amount to actionable trespasses and, if a sufficient danger of their being carried out is established, the Company would be entitled to an injunction to restrain them., I am satisfied that as a matter of title, the Company is entitled to the relief sought for the reasons given. 43. I am also satisfied that there is a very serious risk of the trespasses and other wrongs which are foreshadowed by the threats to disrupt the race mmeeting. It is impossible to say exactly what form the disruption will take, and no doubt the protesters will not disclose that in advance. Nonetheless, I am satisfied that the bases covered by the injunctive relief are sufficient, and no more than sufficient, to protect the Claimant Company from foreseeable risks. The injunctive relief, if it were to be successful, would prevent disruption of the races and the danger to life and limb to which I have already referred. Thus far, the Company has gone a long way towards establishing its claim to an injunction.
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44. Mr Maclean draws a particular Human Rights Act to point to my attention. He draws attention to the fact that it might be said the protesters ’ article 10 rights to freedom of expression and perhaps article 11 rights (freedom of association) are engaged in circumstances in which the particular form of protest in which they wish to indulge are sought to be restrained. He points to the provisions of section 12 of the Human Rights Act, which provides that so far as injunctions to restrain freedom of expression are concerned, the Court should normally not grant an injunction at an interim stage, unless it is satisfied that it is likely that a final injunction will be granted. 45. Mr Maclean does not accept that section 12, with its elaboration in Cream Holdings v Banerjee [2005] 1 AC 253, is actually engaged, but he is satisfied that I should consider this matter on the footing that that section has to be satisfied. He invites me to find that within that section, and its elaboration in Cream , it is more likely than not that he would get his relief as final relief were this to be a trial. 46. I am satisfied that he is correct about that. I consider it more likely than not that the restriction of freedom of expression, if that is what is to happen in this case, is within what is necessary in democratic society for the protection of health and the rights of others, and in particular the health and welfare of those attending the race meeting and the interests of the Claimants in their property rights over the property, and their legitimate enjoyment of those rights and therefore I am satisfied that section 12 does not stand in the way of the granted injunctive relief sought. Were this a trial, injunctive relief would be likely to be granted. 47. Thus far, again, I am therefore satisfied that there is a good arguable case, if not an absolutely clear case, that the Claimant has a right to restrain foreseen trespassers. I am also satisfied that damages would not be an adequate remedy. Having described the nature of the protesters, the nature of the protest and the risks involved, the latter point hardly requires any elaboration. 48. However, there is one significant further procedural or quasi-procedural point which needs to be dealt with, and that is the claim against “P ersons Unknown ” . As I have indicated, the claim is brought against Mr Kidby as being the only identified Defendant, and otherwise it was brought against seven classes of persons unknown. They are described as persons who might interfere with the race meeting at the geographical points to which I have already alluded. 49. Thus, for example, the second category is:
“ Person Unknown intentionally obstructing the seven horse races on 2 June 2023 and eight horse races on 3 June 2023 at the location described below as the “ Epsom Racecourse ”.”
50. The third category again by way of example is as follows:
“ 3) Persons Unknown entering the area described below as the “ racetrack ” , except at specific “ crossing points ” and without “ authorisation ” as described below .” And so on.
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51. Thus they are, as I have indicated, described by reference to geographical locations where the interference might take place, largely coinciding with those that I have already read into this order when I described the terms of the injunction. The exception is, I think, is the category of the eight Defendants, which is: “P ersons Unknown intentionally endangering any person at the location described below as the “ Epsom Racecourse ” . ” 52. Mr Maclean has assisted me through the law in relation to the joinder of Persons Unknown in proceedings and the making of injunctions against them. He has pointed out that there are three recent cases which have clarified the law. They are Boyd v Ineos Upstream Ltd & Persons Unknown [2019] 4 WLR 100, Canada Goose UK Retail Limited v Persons Unknown [2020] 1 WLR 2802 and Cuadrilla Bowland Limited & Ors v Persons Unknown [2020] 4 WLR 29. There is, in addition, Barking and Dagenham v Persons Unknown [2023] QB 295,but it is unnecessary to dwell upon that. 53. The jurisprudence considers at some length the rights and limits to joining Persons Unknown and claiming relief (and in particular injunctive relief) against them. I do not need to go into that jurisprudence in depth. I can confine myself to the following. 54. In Canada Goose at paragraph 82, which is after the decision in the Ineos case, the Court of Appeal have set out the various procedural guidelines applicable to proceedings for interim relief against Persons Unknown in protester cases, such as the one before the Court. The Court set out the following:
“82) Building on Cameron and the Ineos requirements, it is now possible to set out the following procedural guidelines applicable to proceedings for interim relief against "persons unknown" in protester cases like the present one: (1) The "persons unknown" Defendants in the claim form are, by definition, people who have not been identified at the time of the commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. The "persons unknown" Defendants must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary by alternative service such as can reasonably be expected to bring the proceedings to their attention. In principle, such persons include both anonymous defendants who are identifiable at the time the proceedings commence but whose names are unknown and also Newcomers, that is to say people who in the future will join the protest and fall within the description of the "persons unknown". (2) The "persons unknown" must be defined in the originating process by reference to their conduct which is alleged to be unlawful. (3) Interim injunctive relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet relief. (4) As in the case of the originating process itself, the Defendants subject to the interim injunction must be individually named if known and
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identified or, if not and described as "persons unknown", must be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order. (5) The prohibited acts must correspond to the threatened tort. They may include lawful conduct if, and only to the extent that, there is no other proportionate means of protecting the Claimant’s rights. (6) The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do. The prohibited acts must not, therefore, be described in terms of a legal cause of action, such as trespass or harassment or nuisance. They may be defined by reference to the Defendant’s intention if that is strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant is capable of understanding and the intention is capable of proof without undue complexity. It is better practice, however, to formulate the injunction without reference to intention if the prohibited tortious act can be described in ordinary language without doing so. (7) The interim injunction should have clear geographical and temporal limits. It must be time limited because it is an interim and not a final injunction. We shall elaborate this point when addressing Canada Goose's application for a final injunction on its summary judgment application. ”
55. Having considered all those elements, I am quite clear that care has been taken to make sure that they are all complied with in the present case. The protesters are restrained by reference to geographical and temporal limits and the relief is limited to such acts as it is feared that they will commit so far as that can sensibly be done. I am satisfied that all those requirements are fulfilled. 56. I have also had regard to the six requirements, summarised in the head note of the Ineos case, which cover some of the same ground as those in Canada Goose, and I am satisfied that all those requirements are fulfilled as well. I shall not lengthen this judgment by going through them one by one. It should suffice to say that I am satisfied for reasons which will already have appeared in this judgment. 57. Accordingly, I consider that this is an appropriate case for the grant of relief against Persons Unknown, and that those Persons Unknown are properly and adequately described in the action, and in particular in the order which I am invited to make. 58. Mr Maclean, pursuant to his duty of full and rank disclosure, which I am quite satisfied he has fulfilled, has drawn my attention to one or two points which might be taken if anybody were here arguing on the other side. The only one which I need to mention is this. As he points out in an email sent to the court, Mr Kidby seems arguably to be taking the point that it is inappropriate to be granting civil relief in matters where there is a criminal sanction. 59. There would be a criminal sanction under the bylaws, which, as I have already indicated, restrict, restrain or prohibit the commission of nuisances and undesirable behaviour on the Downs. It is not wholly clear that Mr Kidby is taking that point, but nonetheless Mr Maclean entirely properly raises it. The answer to that point, were it to be taken appears from Cambridge City Council v Traditional Cambridge Tours Ltd
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[2018] EWHC 1304 (QB). It is plain from that authority, building on previous authority, that in an appropriate case a person can get an injunction to restrain activities which would otherwise be susceptible to criminal prosecution. In my view, this is such a case. The Claimant is protecting its own rights. It is not itself a prosecuting authority and would have no powers, or no particularly useful powers, in relation to a prosecution and it cannot reasonably be expected to become a prosecution authority in circumstances such as this. 60. It is pretty plain that criminal proceedings in any event are not an adequate deterrent, and indeed, judging from his email, Mr Kidby might almost be seen to be courting such proceedings. In all the circumstances, I am quite satisfied that this is an appropriate case in which civil relief should be granted, notwithstanding the fact that there may be, and I stress, only may be a criminal remedy. It is therefore plain that the potential availability of criminal proceedings is not a bar. 61. In those circumstances, and having considered the terms of the order, I shall make an order in the terms sought with just a couple of variations. The first is probably, although I have not yet debated this with Mr MacLean, the omission of a reference to the bylaws which are not what he seeks to enforce, and the second is an addition to the manner in which it is proposed to serve the order. 62. Where Persons Unknown are joined and are to be subject to an order, it is necessary to have an appropriate mechanism for serving them. That is to say, drawing the order to their attention, so that before they commit any of the offending acts, they are aware, or should be aware, that what they are doing is wrongful. There are proposals to publish the order on the website of the Claimant and of Epsom Downs, but that by itself would not be sufficient. Mr Maclean does not confine himself to that. 63. It was proposed to post the order at two types of places - at each entrance point to the racecourse and the crossing points. That, in my view, is appropriate. However, as I have already debated Mr Maclean, there are additional steps which need to be taken. The crossing points are scattered along the curved length of the racetrack, and if it is going to be sought to restrain people from entering the racetrack at any point other than the crossing points (and I should stress that under normal circumstances, even absent a race meeting, members of the public are not entitled to enter onto the surface of the racetrack itself) it is appropriate to have the order posted at intervals along the rail which defines the edge of the racetrack as it curves round. 64. Mr McLean has proposed posting every 50 metres and I consider that to be appropriate. That seems to me to be the best way, and it is difficult to conceive of a better way, of making sure that those who might wish to protest will have appropriate notice of the order. Of course, it may well be that as a result of publicity given to this hearing that people will know about it anyway, but formally speaking, the posting of the notice will at least add to that. Other than that, and subject to any other modifications which Mr Maclean would himself seek to make and which I might approve, I shall make an order in the terms sought.
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This Transcript has been approved by the Judge. The Transcription Agency hereby certifies that the above is an accurate and complete recording of the proceedings or part thereof. The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038 Email: court@thetranscriptionagency.com
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Case No: BL-2023-000713 Neutral Citation Number: [2023] EWHC 2643 (Ch)
IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES BUSINESS LIST (ChD)
Royal Courts of Justice Strand London WC2A 2LL
Wednesday, 11 October 2023
BEFORE:
MR JUSTICE MILES ----------------------
BETWEEN:
JOCKEY CLUB RACECOURSES LIMITED
Claimant
- and -
KIDBY & OTHERS
Defendants
MR PAUL HIGGINS (instructed by Pinsent Masons LLP) appeared in behalf of the Claimant MR TIM JAMES-MATTHEWS (instructed by ITN Solicitors LLP) appeared on behalf of the Ninth Defendant
________________________
APPROVED JUDGMENT _________________________
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Mr Justice Miles:
Introduction
1. This is the hearing of a contempt application dated 11 August 2023, made by Jockey Club Racecourses Limited as claimant against the ninth defendant, Mr Benjamin Newman (“the defendant”). The claimant was represented before me by Mr Paul Higgins and the defendant by Mr Tim James-Matthews. I thank both for their clear and cogent submissions. 2. The application concerns now admitted breaches of an interim injunction order made by Sir Anthony Mann, sitting as a Judge of the High Court, dated 26 May 2023. In short, on 3 June 2023 the defendant entered the racetrack at the Epsom Racecourse shortly after the commencement of the Epsom Derby and remained on the race track for about 24 seconds before being removed by the police. The defendant admits that that conduct constituted a breach of paragraphs 1 and 6 of the injunction. 3. The events of 3 June 2023 gave rise to criminal charges on 6 July 2023. The defendant pleaded guilty to one criminal offence of causing a public nuisance contrary to section 78 of the Police, Crime, Sentencing and Courts Act 2022, for which he received a suspended custodial sentence of 18 weeks suspended for two years. The defendant admits the breach of the injunction. He has apologised to the court , to the claimant and to those adversely affected by his actions. He has also offered various undertakings both to the claimant and the court, which I shall return to.
4. It follows that the only issue for the court at this hearing is the appropriate sanction to be imposed on the defendant in respect of his admitted contempt of court.
The facts
5. The claimant owns Epsom Racecourse, which hosts the Epsom Derby Festival , a two- day horseracing festival. Mr Newman is an animal rights activist. In his witness statement, he describes himself as being motivated by a profound concern for the welfare of animals and the planet more generally. Mr Newman has been associated with Animal Rising, a direct action protest group. 6. On 22 May 2023 the claimant applied for an interim injunction in anticipation of the 2023 Epsom Derby Festival. This followed disruption at the earlier Grand National, which involved members of Animal Rising, including, it appears, Mr Newman. The defendants to the application before Sir Anthony Mann were Mr Daniel Kidby and various categories of persons unknown. The defendant was not a named defendant to the application.
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7. Sir Anthony Mann made the order on 26 May 2023. The defendants to the order relevantly included:
“(2) PERSONS UNKNOWN ENTERING THE AREA DESCRIBED BELOW AS THE “RACE TRACK” ON THE DAY OF A “RACING FIXTURE”, EXCEPT AT “CROSSING POINTS” WITH “AUTHORISATION”, AS DESCRIBED BELOW
(6) PERSONS UNKNOWN INTENTIONALLY OBSTRUCTING THE “HORSE RACES”, AS DESCRIBED BELOW.”
8. The defendant accepts that by his conduct on 3 June 2023, he fell within the definition of “persons unknown” within sub-paragraphs (2) and (6) and thereby became a defendant to the order.
9.
So far as relevant, the order provided substantively that:
''Until judgment or further order on the day of any Racing Fixture at the Epsom Racecourse (which for the avoidance of doubt includes Oaks Day on 2 June 2023 and Derby Day on 3 June 2023) the respondents must not (1) enter the Racetrack except at Authorised Crossing Points … and (6) intentionally obstruct the Horse Races."
10. The order then set out various means by which, pursuant to CPR 6.15, 6.27 and 81.4(2), service of the order could be affected. These steps included the order being posted electronically on social media and paper copies being affixed at various points at the race course. The existence of the order was widely publicised in the press. 11. The Derby was one of the major sporting events of the weekend of 2 and 3 June 2023. It was particularly widely publicised because of the anticipated possibility of disruption and the order of the court, and because it was Frankie Dettori’s final appearance at the festival. 12. The defendant accepts that the injunction was validly served on him and that he was actually aware of the injunction. Indeed, on 2 June 2023 he gave an interview to BBC Radio Surrey in which he confirmed that, despite the injunction, individuals were planning to go on to the track with a view to trying to stop the horses running. 13. In anticipation of protests at the festival, the claimant put additional security measures in place, and Surrey police also had a significantly increased presence. On the morning of the Derby, a number of arrests were made of animal rights activists. Nineteen arrests in total are reported to have been made. Eleven people had been arrested at addresses in the early hours, and a further eight were arrested after their vehicle was stopped in Canons Lane in Burgh Heath.
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14. On 3 June 2023 the defendant entered the race track at the Epsom Racecourse shortly after the start of the Derby. Specifically, at approximately 13.32.24 the defendant entered the race track. He ran along the track towards the finishing line, away from the horses, and was chased by stewards and police officers. At approximately 13.32.48 the defendant was removed from the racetrack by police officers. 15. The parties have agreed the following facts: (1) The horses were approximately 1.4 miles away from the defendant at the time he went on to the race track. (2) The horses were approximately 1.15 to 1.2 miles away from the defendant at the time he was removed from the race track. (3) The horses were approximately two minutes 21 seconds to two minutes 24 seconds away from the defendant when he entered the race track, and approximately one minute 58 seconds to two minutes two seconds away from him when he was removed from the race track. (4) In accordance with British Horseracing Authority (BHA) protocols, specific procedures were in place to stop the race in the event of a major hazard. This procedure required that orange/yellow stop race flags be deployed and waved by predetermined race course personnel on the instruction of the clerk to the course. In addition, the persons deploying the flags were required to blow a Fox 40 whistle to ensure riders were aware of their presence. Further to the above, there was live visual monitoring of the race from the steward's room and monitoring via visual technology provided by Racecourse Technical Services Limited. For the Derby 2023, the Jockey Club had in place a system of additional flag positions to that normally in place at Epsom, plus different flags to the standard orange/yellow in order to confuse potential protests. Jockeys were briefed accordingly. The defendant's encroachment was handled swiftly with the race in progress but at an early stage, and it was not necessary to implement the procedures described above. (5) The procedure above is as robust as any involving radio communications, appropriate human action as a result plus comprehension and action by riders on horses travelling at speed can be. It involves an element of risk in terms of its implementation, and the speed and timeframe of flat races exacerbates this. The earlier the clerk can make the decision the better, in that it potentially increases the number of flags that can be deployed. (6) In the event that it had proved necessary to do so, the race could have been stopped in time had the system described above operated as it should have done. (7) The claimant does not allege that any horse or jockey's welfare was in fact compromised by the defendant's actions during the running of the 2023 Betfred Derby Stakes. 16. The defendant has served a witness statement dealing with (among other things) the events of 3 June 2023. He accepts that his actions amounted to a breach of the order, and in particular paragraphs (1) and (6). He says that his actions were motivated by a profound concern for the welfare of animals and the planet more generally. He says that he did not set out to create a dangerous situation for animal or human participants in the race. In particular, he says that his intention had been to delay the start of the race and he had not intended to enter the track once the race had started.
17. The defendant was immediately arrested, he was remanded into custody and in the event spent 36 days in custody. On 6 July 2023 he pleaded guilty to one criminal offence of causing a public nuisance. He was sentenced to a suspended custodial
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sentence of 18 weeks suspended for two years together with 80 hours of unpaid work and costs of £1,356.
18. On 11 August 2023 the claimant issued the present contempt application. On 19 September 2023 solicitors for the defendant wrote to the claimant's solicitors. They explained that the defendant wished to admit that he had breached the injunction and that this amounted to a contempt of court. The defendant also offered to provide a written admission that his conduct amounted to a breach of the order, to provide a written apology to the claimant, and to provide written undertakings in the following terms: (1) to comply with the injunction order of Sir Anthony Mann dated 26 May 2023; (2) not to engage in any of the following conduct (in each case where that conduct would have the effect of damaging and/or delaying and/or hindering the claimant by obstructing, impeding or interfering with the lawful activities undertaken by them): (a) entering or being present on any racetrack owned or managed by them, (b) entering or being present on any other area of any racecourse owned or managed by them without authorisation and (c) intentionally obstructing or disrupting any horse race organised or hosted by them. 19. On 4 October 2023 the defendant made his witness statement. In addition to the points already mentioned, the defendant apologised to the court and to those who were adversely affected by his actions. He accepted that he created a frightening situation for those who had to enter the track to remove him and that he caused stress to a number of others. He explained the process by which he had come to reflect on his actions. In particular, he explained that the time spent in custody had afforded him an opportunity to reflect on his actions and he now wished to express his regret for them. He also said that the current proceedings have further underlined to him the serious consequences of breaching court orders. He reiterated his willingness to be bound by the undertakings set out in the letter of 19 September 2023. He stated that he can assure the court that, having reflected seriously upon his own conduct, he will not further breach any order of the court or any undertaking given to the court.
Sanction
20. The authorities show that the court should adopt a structured approach. First, the court should assess the seriousness of the conduct by reference to the contemnor's culpability and the harm caused, intended or likely to be caused. Secondly, and in the light of the court's assessment of the seriousness of the conduct, due weight should be given to matters of mitigation such as genuine remorse, previous positive character and similar matters. There should in particular be a reduction for an early admission of a contempt, to be calculated consistently with the approach set out in the applicable Sentencing Council guidelines. See HM Attorney General v Crosland [2021] UKSC 15 at [44]. 21. There are special considerations where the breach is an act of civil disobedience. The relevant principles have been discussed in a number of recent Court of Appeal decisions. There is a helpful summary in Breen v Esso Petroleum [2022] EWCA Civ 1405 at paragraphs 6 to 11, and I shall follow the principles set out there:
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“6. The correct approach was summarised in Crosland at [44] as follows:
“44. General guidance as to the approach to penalty is provided in the Court of Appeal decision in Liverpool Victoria Insurance Co Ltd v Khan [2019] EWCA Civ 392; [2019] 1 WLR 3833, paras 57 to 71. That was a case of criminal contempt consisting in the making of false statements of truth by expert witnesses. The recommended approach may be summarised as follows: 1. The court should adopt an approach analogous to that in criminal cases where the Sentencing Council's Guidelines require the court to assess the seriousness of the conduct by reference to the offender's culpability and the harm caused, intended or likely to be caused.
2. In light of its determination of seriousness, the court must first consider whether a fine would be a sufficient penalty.
3. If the contempt is so serious that only a custodial penalty will suffice, the court must impose the shortest period of imprisonment which properly reflects the seriousness of the contempt.
4. Due weight should be given to matters of mitigation, such as genuine remorse, previous positive character and similar matters.
5. Due weight should also be given to the impact of committal on persons other than the contemnor, such as children of vulnerable adults in their care.
6. There should be a reduction for an early admission of the contempt to be calculated consistently with the approach set out in the Sentencing Council's Guidelines on Reduction in Sentence for a Guilty Plea. 7. Once the appropriate term has been arrived at, consideration should be given to suspending the term of imprisonment. Usually the court will already have taken into account mitigating factors when setting the appropriate term such that there is no powerful factor making suspension appropriate, but a serious effect on others, such as children or vulnerable adults in the contemnor's care, may justify suspension.”
7. This guidance has been repeated in a number of subsequent cases, in particular at [28] of the judgment of the Divisional Court in Buse ,
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