National Highways Limited v Adelheid Russenberger & Ors
[2024] EWHC 566 (KB)
Elliott Cuciurean v Secretary of State for Transport & Anor
17 November 2022
[2022] EWCA Civ 1519
Court of Appeal
A man who protested against HS2 by living in a tunnel was jailed for almost 9 months for breaking a court order. The judges disagreed about whether the order clearly applied to him, but most agreed the jail time was fair. The fine was cancelled because he's too poor to pay.
Key Facts
- •Elliott Cuciurean, a serial HS2 protestor, was sentenced to 268 days immediate custody and a £3,000 fine for contempt of court.
- •The contempt arose from his 46-day occupation of a tunnel on HS2 land in breach of a court injunction (the Cotter Order).
- •Cuciurean argued that the Cotter Order did not apply to him because, while named as a defendant, he was also included within the 'persons unknown' category.
- •He did not engage with the court process until after leaving the tunnel, despite being served with committal proceedings while inside.
- •The judge initially dismissed Cuciurean's argument on procedural grounds, then rejected it on its merits.
- •Cuciurean appealed the sentence and the finding of contempt.
Legal Principles
Sanctions for contempt must be just and proportionate, not excessive. In civil contempt, ensuring future compliance is a key objective.
Breen & Ors v Esso Petroleum Company Ltd [2022] EWCA Civ 1405 at [5]-[17]
Appeals against sanctions are reviews, not rehearings. The court will only interfere if the decision is wrong or unjust due to irregularity.
CPR r.52.21(1), (3)
A defendant should not be penalized for running an unsuccessful defense.
Implicit in the judgment
Injunctions should be clear and unambiguous to avoid penalizing individuals for conduct not clearly prohibited.
Cuadrilla Boland Ltd. & Others v Persons unknown & Others [2020] EWCA Civ 9 at [59]
Conscientious objection does not justify flouting court orders with impunity. Dialogue and proportionality are important factors in determining sanctions.
Attorney General v Crosland [2021] UKSC 15 at [47]; Heyatawin at [53]
A named defendant can also be included in a 'persons unknown' category of an injunction, if the definition is clear and the actions fall within the 'persons unknown' definition.
South Cambridgeshire DC v Gammell [2005] EWCA Civ 1439
In cases involving injunctions against 'persons unknown', if defendants are known and identified, they must be joined as individual defendants.
Canada Goose UK Retail Limited v Persons Unknown [2020] EWCA Civ 303 at [82]
Outcomes
Appeal dismissed (majority decision on Ground 4, unanimous on Grounds 2 & 3).
The Court of Appeal held that the Cotter Order applied to Cuciurean, even though he was a named defendant and also potentially covered by the 'persons unknown' category. The sanction was deemed not excessive.
The £3,000 fine was quashed.
Cuciurean lacked the means to pay, and attempting enforcement would waste public resources.
One judge (Phillips LJ) dissented on Ground 4.
Phillips LJ believed the wording of the Cotter Order did not apply to Cuciurean.