High Court Continues Shell Injunctions, Clarifies Rights of Non-parties to Challenge Orders and Considers Relevance of s.12(3) HRA Test

Shell Petrol Station

On Tuesday 23 May 2023, the High Court continued three interim injunctions to restrain unlawful protest activity at a range of sites owned by Shell (fuel storage and distribution installations, global headquarters in Central London and over 1,000 petrol stations nationwide). This was the latest in a series of renewal hearings following injunctions granted last year to restrain direct-action protest activities targeted at the oil industry and expressions of intent by campaign groups - including Just Stop Oil - to continue such activities.

The judgment is notable because it involves the most detailed consideration to date as to the parameters of the CPR r.40.9 jurisdiction which allows non-parties to apply to vary or discharge orders and how the court should approach such applications at a hearing for the future continuation of an existing injunction against ‘Persons Unknown’.

On the eve of the first day of the hearing, a non-party – who was a member of one of the protest groups – made an informal application to be heard (both pursuant to the Court’s inherent power and CPR r.40.9). Her application was supported by a witness statement and skeleton argument and challenged the basis for the grant of an injunction against Persons Unknown founded on the economic tort of conspiracy, the proposed continuation of each of the orders and their specific terms. The non-party asserted that she had no intention of breaching any of the existing injunctions and did not wish to be joined as a named Defendant but contended that she was directly affected by them within the meaning of rule 40.9.

In considering CPR r.40.9, Hill J followed Ritchie J’s approach in Esso Petroleum Company Limited v Breen and Persons Unknown [2022] EWHC 1105 (QB) and confirmed that the right to be heard under CPR 40.9 requires an applicant to satisfy two “gateway” tests:  that they are (i) “directly affected” by the injunction; and (ii) have a “good point” to raise. Once those gateways are passed, the court has no residual discretion. Hill J further held that injunctions against Persons Unknown required (i) a “low” threshold for interested persons to be able to take part; (ii) the court to adopt a “flexible” approach and (iii) the court to take a “generous” view where it was being asked to make wide ranging orders and would not otherwise hear any submissions in opposition to those advanced by the Claimants.

Hill J provided additional guidance as to the nature of the hearing of a contested application for a continuation of an existing injunction against Persons Unknown, whether it operates as a re-hearing or a review. Where an applicant who wishes to set aside a Persons Unknown injunction obtained without notice applies to discharge or vary it, they should do so promptly and by application notice; and the application takes the form of a “complete rehearing of the matter, with each party being at liberty to put in evidence”. However, “the matter” necessarily includes consideration of the judgments of the previous judges and ideally the transcripts. The judge noted that this differed from the narrower approach to be adopted on an uncontested review hearing.

Following a series of conflicting decisions on the point, Hill J also gave proper consideration to whether the test laid down by s.12(3) of the Human Rights Act 1998 applies to such injunctions with the effect that a claimant must establish that they would be “likely” to succeed at trial as opposed to the relatively low “serious issue to be tried” threshold. Whilst acts of protest do not of themselves amount to “publication” for those purposes, injunctions which seek prohibitions on “writing in any substance on” land or similar forms of expression would engage section 12(3).

Hill J considered each of the challenges raised by the non-party, including the suitability of the pleaded tort of conspiracy, and ultimately concluded that the orders had been properly granted and that the requirements for ongoing precautionary relief were met: see Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch)] at [31(4)(d)], per Marcus Smith J at [31(3((d)]. She extended the injunctions until trial or further order, with a ‘backstop’ period of one year.

Myriam Stacey KC and Joel Semakula acted for Shell, instructed by Eversheds LLP.

The judgment can be found here.

Press coverage of this case may be found here.

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