KB-2024-004175 - [2025] EWHC 2050 (KB)

I am not invited by the Claimant to make a true contra mundum Order of the type made by Nicklin J in MBR Acres. To the contrary the Claimant positively submits that the Court should not make such an order in this case, arguing that to do so would be to impose an Order of far wider scope than that currently in force with no justification for doing so.

At Paragraph 221 in Wolverhampton the Supreme Court held that:

“The actual or intended respondents to the application must be defined as precisely as possible. In so far as it is possible actually to identify persons to whom the order is directed (and who will be enjoined by its terms) by name or in some other way, as Lord Sumption explained in Cameron, the local authority ought to do so. The fact that a precautionary injunction is also sought against newcomers or other persons unknown is not of itself a justification for failing properly to identify these persons when it is possible to do so, and serving them with the proceedings and order, if necessary, by seeking an order for substituted service. It is only permissible to seek or maintain an order directed to newcomers or other persons unknown where it is impossible to name or identify them in some other and more precise way. 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.”

In MBR Acres, Nicklin J concluded that in order to give effect to this aspect of the Judgement it was necessary to make a true contra mundum Order. There will no doubt be cases similar to MBR Acres in which it will be possible, and indeed desirable, to frame the Order in a similar manner and thereby to achieve the precision in definition required to be compliant with the procedural requirements imposed by the Supreme Court in Wolverhampton.

However, each case will undoubtedly turn on its own facts and different factual scenarios may require different approaches to the drafting of Wolverhampton compliant Orders. In this case I am satisfied that the terms of the previous order defined the intended respondents as precisely as it is possible to do and identifies any newcomers ‘as a class by reference to conduct prior to what would be a breach’. I do not therefore consider it necessary or appropriate to impose a true contra mundum order that would mark a significant, and unnecessary, widening of the scope of the order that has hitherto been in place.

I note that in the reviews that were conducted in both London City Airport Ltd & Ors v Persons Unknown (24 June 2025, unrep.) [2025] 6 WLUK 499 and Esso Petroleum Co Ltd v Persons Unknown[2025] EWHC 1768 (KB) Bourne J and Sweeting J respectively declined to follow the approach of Nicklin J in MBR Acres and did not impose contra mundum Orders, each preferring not to interfere with the ‘conventional’ form of Order as had previously been imposed in each case.

I am furthermore unpersuaded, notwithstanding the approach taken by Nicklin J on the facts of MBR Acres, that there is any blanket requirement to impose a condition that requires the Claimant to seek permission before bringing contempt proceedings. As Sweeting J held in Esso Petroleum:

“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.”

There being in my view no blanket requirement to impose a restriction on contempt proceedings, I do not consider it appropriate to impose such a requirement on the facts of this case.

There is only one aspect of the previous Orders that requires modification and that is to give effect to a public right of way that passes over the Claimant’s Shipley site. I have given effect to that right of way by making a minor adjustment to Paragraph 2(i)(a) of the Order which ensures that no person would breach the terms of the Order by exercising their right to pass and re-pass only along the public right of way.