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Court of Appeal partially upholds injunction against persons unknown

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management - Disclosure – Other


Joseph Boyd & Anr v Ineos Upstream Ltd & Ors [2019] EWCA CIV 515

Facts of the case

  • The Claimants (the respondents to this appeal) are a group of companies and certain individuals involved in the fracking industry.

  •  As a result of the Claimants’ concern that protests against fracking might cross the boundary between legitimate and illegitimate activity, the Claimants sought injunctions to restrain unlawful acts of protest before they occurred. These were sought against: (i) persons unknown who were thought likely to be become protestors; and (ii) two named individuals (“D6” and “D7”).

  • The persons unknown were defined by inter alia the following activities at certain specific sites:
    • trespass to land (“D1”);

    • interfering with the Claimants’ private access to the site (“D2”);

    • interfering with public rights of way (“D3”);

    • engaging in conduct amounting to harassment (“D4”); and

    • conspiracy to injure by unlawful means (“D5”)

  • At first instance, Morgan J granted injunctions against D1, D2, D3 and D5.

  • While no order was made against D6 or D7, both were given permission to appeal against the injunctions made against the persons unknown on inter alia the following grounds: (i) whether Morgan J was correct to grant injunctions against persons unknown; and (ii) whether the judge failed to adequately or at all apply section 12(3) of the Human Rights Act 1998 (“HRA”), which requires a judge making an interim order in a case in which freedom of expression is engaged to assess whether the Claimants would be likely to obtain the relief sought at trial.

The decision

  • The Court of Appeal observed that there was no requirement to name a defendant in a claim form, and that orders had been made against personsunknown previously. It therefore went on to find that there was no conceptual or legal prohibition on suing persons unknown who are not currently in existence, but who will come into existence when they commit the prohibited tort.
  • As regards the injunctions against D1 and D2, the Court of Appeal held that while Morgan J had considered that the threat of trespass / interferencewas imminent and real, he had: (i) given little or no consideration to the question of whether it was likely that such threat would be established at trial; and (ii) not imposed any temporal limits on the injunctions.

  • The Court of Appeal therefore maintained the injunctions against D1 and D2 pending remission to Morgan J to reconsider: (i) whether interim relief should be granted in light of section 12(3) of the HRA (which it considered Morgan J was better placed to determine); and (ii) if the injunctions were to be continued, what the appropriate temporal limits would be.

  • As regards the injunctions against D3 and D5, these were discharged on the basis that they were too wide ranging.

Analysis and practical advice

  • Courts will take a cautious approach to granting injunctions against unknown persons, since the reach of such an injunction is necessarily difficult to assess in advance. Accordingly, the Court of Appeal outlined the following tentative requirements:  

    1. here is a sufficiently real and imminent risk of a tort being committed;

    2. it is impossible to name the persons who are likely to commit the tort unless restrained;

    3. it is possible to give effective notice of the injunction and that the method of such notice is set out in the order;

    4. the terms of the injunction correspond to the threatened tort and are not so wide that they prohibit lawful conduct;

    5. the terms of the injunction are sufficiently clear and precise so as to enable persons potentially affected to know what they must not do; and

    6. the injunction has clear geographical and temporal limits.