Court of Appeal clarifies approach to applications for summary judgment in proceedings where quia timet relief is sought

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The Court of Appeal (Dame Victoria Sharp President of the King’s Bench Division, Sir Julian Flaux Chancellor of the High Court, Lewison LJ) today handed down judgment in National Highways Limited v Persons Unknown and others [2023] EWCA Civ 182, allowing the appeal.

The appellant (“NHL”) had sought and obtained a series of interim quia timet or precautionary injunctions restraining protest activity carried out under the banner of ‘Insulate Britain’, on the basis of apprehended trespass or nuisance. The protest activity, in general, involved protestors physical occupying and attaching themselves to roads on the strategic road network, particularly the M25 and related roads. Subsequently, in accordance with judicial guidance to the effect that interim injunctions should not be left in place indefinitely and that proceedings should be concluded, NHL made an application for summary judgment, seeking final injunctions in materially the same form as the interim injunctions already granted.

The application came before Bennathan J, who concluded that, while NHL had made out its case for quia timet relief, the application for summary judgment could not succeed in relation to the majority of defendants because NHL had failed to show that, on the balance of probabilities, those defendants had actually committed the alleged torts.

On appeal, the Court of Appeal has confirmed that there is no need for a claimant seeking a final quia timet injunction to demonstrate that defendants have committed torts in the past, the essence of this form of injunction being that the tort is threatened and the claimant’s cause of action is not complete.

Myriam Stacey KC and Admas Habteslasie appeared for the Appellant.

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