QB-2022-001098 - [2025] EWHC 1768 (KB)

I have to consider whether any reasons or grounds for the discharge of the injunction have emerged since the last review. The principal factual development has been JSO’s announcement in March 2025 in relation to "hanging up the hi vis". However, as I have outlined above, the evidence shows, in my view, that this announcement cannot be taken as an unequivocal and final renunciation of direct action. The amorphous nature of the group, combined with the past experience of similar unfulfilled statements by XR, and JSO’s subsequent communications and activities, mean that it would be premature to rely on this announcement as a basis for amending or discharging the injunction. The risk of direct action by those connected with the JSO campaign remains real and imminent.

In relation to legal developments, there have been discussions in recent cases concerning two procedural matters: (a) how "Persons Unknown" ought to be described; and (b) whether orders against them should include a requirement for permission before a contempt application may be brought.

As to the description of "Persons Unknown," the Supreme Court in Wolverhampton stated at paragraph 221:

“…Even where the persons sought to be subjected to the injunction are newcomers, the possibility of identifying them as a class by reference to conduct prior to what would be a breach (and, if necessary, by reference to intention) should be explored and adopted if possible.”

While Nicklin J in MBR Acres Ltd v Curtin [2025] EWHC 331 suggested it was "no longer necessary, nor appropriate" to restrain particular categories of defendants for contra mundum injunctions, and Fordham J adopted a similar approach in University of Cambridge v Persons Unknown [2025] EWHC 454, I note that Soole J subsequently doubted this position in University of Cambridge v Persons Unknown [2025] EWHC 724, reverting to the orthodox approach. I am told that Bourne J at the review hearing of an injunction relating to London City Airports, on 24 June 2025 preferred a more straightforward reading of Wolverhampton paragraph 221 and held that this point was procedural, not justifying re-writing orders on review. I find no compelling reason to amend the description of the Defendants in this case when considering it on review save in one respect (see further below). The current description best adheres to the guidance in Wolverhampton by identifying a class by reference to conduct notwithstanding the cogent reasons set out by Nicklin J for taking a different course in MBR. I do however consider that the prospect of JSO evolving, deliberately, into a differently named campaign essentially involving the same organisation, supporters and protesters is demonstrated on the evidence and requires an adjustment to the description of the Defendants to add “or other environmental campaign” so as not to, potentially, thwart the purpose of the injunction. This course was taken in the City Airport injunction proceedings. Any concern that this may involve a widening of the injunction is tempered by the fact that the description involves conduct that is on its face unlawful and where Convention rights are qualified so that the balancing exercise is heavily in favour of a restraint.

As to a requirement for permission before a contempt application may be brought, this measure was adopted in MBR and the University of Cambridge cases. It is apparent that Nicklin J in MBR Acres was significantly influenced by the particular claimants' conduct in that case, which involved trivial and inappropriate contempt applications. However, I observe that the suggestion of a blanket requirement for all newcomer injunctions in protest cases appears to have been made per incuriam given other relevant authorities, such as AG v Times Newspapers Ltd [1974] AC 273, Sectorguard plc v Dienne plc [2009] EWHC 2693 (Ch), and PJSC Vseukrainskyi Aktsionernyi Bank v. Maksimov & Ors [2014] EWHC 4370 (Comm). These cases suggest that the courts already possess adequate mechanisms to address disproportionate committal applications. In the present case, there is no evident need or justification, in my view, to impose a requirement for the Claimants to seek permission before commencing any committal applications. The Supreme Court in Wolverhampton, which carefully balanced the interests of landowners and Persons Unknown, did not impose such a requirement. There is no evidence before me that claimants are generally bringing trivial committal applications in cases of this nature. While the specific factual circumstances may have driven the decisions in MBR Acres and the Cambridge cases, those particular concerns are not present here. Imposing such a permission filter could lead to disproportionate burdens and complexities, potentially requiring multiple hearings and appeals, which would be more stressful for potential defendants and consume significant court resources. It is generally preferable for all matters to be addressed in one committal hearing unless a specific factual reason necessitates otherwise.

I am satisfied that the injunction has been effective to date, as there has been no direct action at the Sites for some years. Indeed, the evidence from JSO itself supports this conclusion, indicating that the existence of injunctions at oil refineries has caused them to target other sites.

There remains a proper justification for the continuance of the injunction. A real and imminent risk of direct action at the Sites persists if they were to be left unprotected. This view has been consistently taken by multiple judges in this claim and in other similar claims. The substantial harm, particularly the health and safety risks, to those who are not trained to understand the many hazards at the Sites, underscores the necessity of the injunction. The Defendants have no lawful reason to enter or remain upon these restricted and fenced-off private lands for the purpose of direct action. The evidence has clearly demonstrated that the existence of criminal offences is insufficient to deter the Defendants.