Transport for London v Persons Unknown & Anor.
[2023] EWHC 1038 (KB)
National Highways Limited v Person Unknown & Anor
23 February 2023
[2023] EWCA Civ 182
Court of Appeal
A highway agency sued Insulate Britain protesters to stop them blocking roads. A judge said they needed more proof the protesters had done wrong before granting a permanent stop order, but the Court of Appeal disagreed. Because the protesters didn't defend themselves in court, the appeal court ruled the protesters couldn't block roads anymore.
Key Facts
- •National Highways Limited (NHL) appealed against orders dismissing its summary judgment application for a final anticipatory injunction against Insulate Britain (IB) protesters.
- •The injunction sought to prevent future motorway blockades.
- •24 defendants were found in contempt of court and a final injunction was granted against them.
- •The judge refused a final injunction against the remaining 109 defendants, granting only an interim injunction.
- •The judge found NHL's evidence insufficient to show tortious liability of the 109 defendants.
- •The defendants largely failed to engage with the proceedings.
- •The appeal focused on the judge's erroneous application of legal tests for granting a final anticipatory injunction and summary judgment.
Legal Principles
Test for granting an anticipatory injunction: imminent or real risk of commission of the torts alleged.
Ineos at [34(1)]
Quia timet injunctions granted where breach of rights is threatened, but cause of action is not complete.
Vastint at [31(2)]
Court's jurisdiction to grant quia timet injunctions extends to final injunctions.
Vastint at [27]
Two-stage test for quia timet injunctions: (1) strong possibility of imminent infringement; (2) harm grave and irreparable.
Vastint
Power under section 37 of the Senior Courts Act 1981 to grant a final injunction against unknown persons.
Barking [2022] EWCA Civ 13
Summary judgment test under CPR Part 24.2: whether defendants have no real prospect of successfully defending the claim.
CPR Part 24.2
Relevance of failure to serve a defence in summary judgment applications.
CPR Part 24.5
Balancing competing rights of protesters and others; considering human rights.
DPP v Jones, DPP v Ziegler, Canada Goose, Samede
Outcomes
Appeal allowed.
The judge erred in requiring proof that each defendant committed the tort before granting a final anticipatory injunction. The failure of the defendants to engage with the proceedings supported NHL's claim that they had no real prospect of a successful defence.
Final injunction granted against the 109 named defendants and persons unknown (with exception of 'tunnelling' clause).
There was a real and imminent risk of future torts, and the defendants' lack of defence supported the grant of summary judgment.