Continuing injunctions against persons unknown – real and imminent risk of offending conduct

A non-party is entitled to be heard on an application to continue an existing injunction where they are directly affected by the injunction and have a good point to raise. In the latest in a series of renewal hearings, the High Court has continued three interim injunctions to restrain unlawful protest activity at sites owned by Shell, including a fuel storage and distribution installation at Shell Haven in Stanford-le-Hope, Essex, its global Shell Centre Tower headquarters in central London and more than 1,000 petrol stations nationwide in Shell UK and others v Persons Unknown [2023] EWHC 1229 (KB); [2023] PLSCS 89. A member of one of the protest groups applied to be heard pursuant to the court’s inherent powers and CPR 40, challenging the basis for the grant of an injunction against Persons Unknown founded on the economic tort of conspiracy, the continuation of the orders and their terms. She claimed to be directly affected by the orders although she did not intend to breach them and did not wish to be joined as a party. The judge confirmed that the applicant was entitled to be heard if she was directly affected by the order or had a good point to raise, and if one of those gateways was passed then the court must hear the application. Injunctions against Persons Unknown require a “low” threshold for interested persons to be able to take part, and it is proper for the court to adopt a “flexible” approach to such applications and to take a “generous” view where it was being asked to make wide-ranging orders: see National Highways Ltd v Persons Unknown [2022] EWHC 1105 (QB). The hearing of such an application is a complete rehearing – as contrasted with an uncontested review hearing – with each party at liberty to put in evidence and consideration of previous judgments and transcripts. The Haven and Tower injunctions were sought and obtained on the basis of an underlying claim of trespass to land and private nuisance, with protestors blocking the main access roads to Haven and converging on the Tower and obstructed the road. The petrol station claims were advanced under the tort of conspiracy to injure by unlawful means when forecourts were blocked, display screens on pumps smashed and protestors glued themselves to the ground, a fuel pump and each other. In each case the evidence showed there was a real and imminent risk of the offending conduct occurring. There were serious issues to be tried, and Shell was more likely than not to succeed at trial. It was appropriate to extend the injunctions as sought. Louise Clark is a property law consultant and mediator