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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