Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The England and Wales Court of Appeal held that while there was no conceptual or legal prohibition on obtaining an injunction to restrain a category of unnamed defendants from protesting, a court should be “inherently cautious” before granting them. Ineos Upstream Limited and its business partners secured some land to conduct gas exploration using fracking. Concerned with likely protests, the company requested an injunction to restrain several categories of “persons unknown” from committing unlawful acts associated with such protests, including trespass, interference with the right of way, harassment, and intimidation. A first instance court granted the injunction and there was an appeal. The Appellate Court lifted the injunction for some categories of “persons unknown” and kept it for others, pending restrictions on the length of the injunction and a new assessment of the risk that the supposed unlawful acts will take place.
Ineos Upstream Limited, subsidiaries of the Ineos Group, and five individuals (hereafter “Ineos Companies”) obtained permission to explore for gas on lands they owned using fracking. Fracking is lawful in England but “is a controversial process partly because it is said to give rise to (inter alia) seismic activity, water contamination and methane clouds, and to be liable to injure people and buildings, but also because shale gas, which is a fossil fuel considered by many to contribute to global warming and in due course unsustainable climate change. For these reasons (and no doubt others) people want to protest against any fracking activity both where it may be taking place and elsewhere.”
Worried about protests, the Ineos Companies sought an injunction to prevent five categories of protesters, none named individually, from participating in unlawful acts of protests before they occurred. These included:
Ineos Companies also named two individuals, Mr. Boyd and Mr. Corre as defendants.
On November 23, 2017, Justice Morgan, who presided over the first instance trial, granted an injunction, against restraining unnamed protesters from committing trespass, private nuisance, public nuisance and causing loss by unlawful means. He did not grant an injunction against the fourth unnamed category of protesters, because the term “harassment” was not clear enough for the purposes of an injunction. The court also did not issue injunctions against the two named protesters, Mr. Boyd and Mr. Corre.
According to Justice Morgan, evidence available to him established that there was an imminent and real risk that in the absence of an injunction, protesters would interfere with Ineos’ legal rights and Ineos would likely not receive any redress or compensation for the infringement of its rights. First, the evidence established that protesters objected to the whole industry of shale gas exploration and did not draw distinctions among various companies. This indicated that protesters would assuredly target Ineos. Second, past anti-fracking protesters committed a range of unlawful acts, including trespass, interference with the private right of way, public nuisance, harassment, conspiracy to injure using theft, criminal damage, intimidation and even violence. Third, “there have been acts of trespass in other cases on land intended to be used for fracking even before planning permission for fracking had been granted and fracking had begun.” To Justice Morgan, this indicated that the risk of infringement of Ineos’ rights was imminent.
In making his ruling, Justice Morgan also balanced the rights guaranteed under articles 10 (freedom of expression) and 11 (freedom of peaceful assembly) of the European Convention on Human Rights and the rights of others, in this case the protection of private rights of ownership. The Justice referred to Mayor London v Hall judgment concerning the rights of Occupy Wall Street Protesters to protest on a bank’s property. In that case, the court held that protesters could “manifestly communicate their views about waste of resources or the practices of one or more banks without being in occupation of this building complex.” The court added, “no one is seeking to prevent them from coming together to campaign or promulgate those views…the fact that the occupation gives them a valuable platform for publicity cannot in itself provide a basis for overriding the respondent’s own right as regards its property.” [para. 104]
As for the fact that the defendants in this case were “persons unknown”, Justice Morgan held that since 2003 there have been many cases in which courts have granted injunctions against persons unknown, including in cases dealing with protesters.
The named defendants, Mr. Boyd and Mr. Corre appealed the judgment.
On April 3, 2019, the England and Wales Court of Appeal upheld the injunction against the first (trespass) and second unnamed defendants (right of way), pending a review by the first instance court concerning the imminence of trespass and the temporal limit of the injunction. The Court dismissed the injunctions made against the third (right of way for Ineos’ suppliers) and fifth (conspiracy to commit unlawful acts) defendants.
The Appellate Court considered three issues in making its judgment:
First, the Appellate Court reviewed the law concerning “persons unknown.” It agreed with the first instance court that there was no requirement to name a defendant in a civil trial, and that the Bloomsbury Publishing Group Ltd v News Group Newspapers judgment was the first of many that had “persons unknown” as defendants. The Court added that there was “no conceptual or legal prohibition on suing persons unknown who are not currently in existence but will come into existence when they commit the prohibited tort.” [para 30] However, the Appellate Court warned that it was difficult to assess the reach of injunctions against “persons unknown” in advance, and thus courts had to “inherently cautious” about granting such injunctions. The Court thus proposed six requirements to be met to grant an injunction against persons unknown:
The Appellate Court found that the first three requirements were easily satisfied,”The judge held that there was a real and imminent risk of the commission of the relevant torts and permission has not been granted to challenge that on appeal. He also found that there were persons likely to commit the torts who could not be named and was right to do so; there are clear provisions in the order about service of the injunctions and there is no reason to suppose that these provisions will not constitute effective notice of the injunction. The remaining requirements are more problematic.” [para. 35]
Then, the Appellate Court discussed the fourth requirement concerning the width and clarity of the injunction. First, the Court stressed that “the right to freedom of peaceful assembly was guaranteed by both the common law and Article 11 of the ECHR. It is against that background that the injunctions have to be assessed. But this right, important as it is, does not include any right to trespass on private property.” The Court added, “there is no difficulty about defining the tort of trespass and an injunction not to trespass can be framed in clear and precise terms,” as the first instance Court had done. Further, in its analysis, the Court dismissed the argument that an “innocent dog walker” could be caught in the injunction, since an ordinary dog-walker would be deterred from being around an anti-fracking protest. However, the Court noted that the injunctions did not have a “temporal limit.” The Appellate Court upheld the injunctions against protesters who may trespass on Ineos’ property or violate the company’s right of way, pending review by the first instance court concerning the imminence of trespass and the temporal limit of the injunction.
The Appellate Court then looked at the application of Section 12(3) of the UK Human Rights Act which provides “(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.” The Court interpreted this section to mean that “it’s not just the trespass that has to be shown to be likely to be established but also the nature of the threat.” Here, for the purposes of interim relief, the first instance court “has held that the threat of trespass is imminent and real but has given little or no consideration (at any rate expressly) to the question whether that is likely to be established at trial.” [para. 48]
Further, the Appellate Court found that the injunctions against the third and fifth “persons unknown” were too broad and unclear. For instance, the first instance judge restrained the fifth defendants from combining together to obstruct free passage along a public highway by “slow walking” in front of vehicles or otherwise unlawfully obstruct the highway to cause delay to Ineos. The Appellate Court explained that the first instance court’s reasoning failed to the extent to which “slow walking” would result in damage, or if the court could even assess whether the “slow-walker” intended it. Plus, “slow walking is not itself defined and is too wide: how slow is slow?” [para. 40] According to the Appellate Court, this lack of clear terminology created a chilling effect on the legitimate exercise of the right to peaceful assembly.
The Appellate Court dismissed the injunctions made against the third and fifth defendants. The Court upheld the injunctions against the first and second defendants pending a review by the first instance court concerning the imminence of trespass and the temporal limit of the injunction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands expression by balancing property rights with the right to freedom of expression. As noted by the UK Human Rights Blog, “in their forceful rejection of the idea that such injunctions can be applied to a wide range of future conduct which may be unlawful, but depending on its facts, may not be, the Court of Appeal have made clear that this line of case law is only to be deployed in limited circumstances. A greater margin of protection is to be afforded to those exercising their rights to lawfully assemble and express their views, and perhaps, to those pushing at their boundaries.”
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