Cuciurean v Secretary of State for Transport and another

Trespass – Sanction – Persons unknown – Appellant protesters appealing against suspended term of imprisonment for breach of injunction prohibiting “persons unknown” from trespass – Whether terms of injunction sufficiently clear – Whether sanction of imprisonment appropriate – Appeal allowed in part The respondents held woodland near Kenilworth, Warwickshire for the purposes of the high-speed rail transport infrastructure project (HS2). The appellant was an objector to the environmental impact of the project. In March 2020, the court granted an injunction on the application of the respondents prohibiting trespass on the land. It was an injunction against persons unknown. The appellant was not a named defendant. However, in June 2020, the respondents issued a contempt application, alleging that he was one of the persons unknown against whom the claim was brought, and that he had wilfully broken the injunction on at least 17 occasions by entering and remaining on the land. The judge found the appellant in breach in 12 respects: [2020] EWHC 2614 (Ch)). He subsequently made orders for committal to prison for six months, suspended for 12 months, to run concurrently: [2020] EWHC 2723 (Ch)). The appellant appealed contending that the evidence before the judge was incapable of establishing that he had encroached on the land; or that he had sufficient notice of the March order to justify a finding that any such encroachment amounted to contempt. Further, the judge erred in law by requiring the appellant to establish that the position on notice was such that it would be unjust to find him in contempt, thereby reversing the burden of proof; and by leaving out of account the respondents’ failure to comply with one of the service provisions of the March order. Alternatively, the penalties imposed were wrong in principle and/or excessive and disproportionate.   Held: The appeal was allowed in part. (1) The judge had considered and dismissed the possibility of a mismatch between the physical perimeter and the demarcation of the land as set out in the order.  He concluded that a mismatch was theoretically possible but directed himself as to the standard of proof and no criticism could be made of the terms in which he did so. The judge expressly accepted the appellant’s case that the respondents still bore the burden of proving to the criminal standard that the trespass complained of took place within the land marked on the plan. The occasional use of language redolent of a lower standard was not enough to show that the judge did not faithfully apply the standard he had set himself, when reaching his conclusions on actual knowledge: JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411; [2013] 1 WLR 1441 applied. Where the precise location of a boundary was disputed in a conveyancing context, the court would invariably look at the topographical features on the ground at the time of the conveyance. The standard of proof might differ, but there seemed no reason why the fact that the point arose in the context of a contempt application should change that basic approach. On the judge’s findings, the boundary fences in place at the time of the incidents were also in place at the time of the March order. It was therefore a legitimate interpretation of the plan attached to that order that the boundary fences were intended to demarcate the land included in the scope of the order: Alan Wibberley Building Ltd v Insley [1999] 2 EGLR 89 and Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 considered. (2) There was no authority to support the proposition that the correct test was whether there was good service or not, which was for the claimant to prove beyond reasonable doubt, including negativing any suggestion of injustice raised by the defendant. Moreover, the proposition appeared to be contrary to authority. The cases made it clear that any provision for alternative service should be such as could reasonably be expected to bring the proceedings to the attention of the defendant. But that was a standard to be applied prospectively. In principle, a defendant joined as a person unknown might later seek to set aside or vary an order for service by alternative means, on the grounds that the court was misinformed or otherwise erred in its assessment of what would be reasonable.  But that was not the present case. The relevant criteria were correctly identified and faithfully applied by the judge. One could understand the unease at the notion that a person might be held in contempt of court even though he was not shown to have had actual knowledge of the order, or its relevant aspects. However, that was not likely to occur often. And if it did, no penalty would be imposed. That was not problematic in principle, especially as this was a civil not a criminal jurisdiction. On the evidence, and in the light of the judge’s findings of fact, the appeal would fail even if the court accepted the appellant’s submissions on the requirement of notice: Attorney General v Times Newspapers Ltd [1992] 1 AC 191 and Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020]; [2020] PLSCS 10 followed. Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] PLSCS 37, Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 and Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515 considered. (3) The order required the respondents to confirm, no less frequently than every 28 days, that copies of the orders and signs affixed at conspicuous places around the land remained in place and legible. Although the judge could not be sure that the checking requirement had been complied with, it was not a condition of good service but a stand-alone requirement. (4) When assessing the overall seriousness of the contempt, the judge took too high a starting point. The judge was entitled to regard the case as one of serial disobedience but he had not taken full account of the fact that the appellant was engaged in civil disobedience. His conclusion that in an ordinary case the sanction would have been one of committal for 18 months was too severe, in the context of a maximum penalty of two years. The result was a period of committal greater than was necessary or proportionate. The sanction would be reduced to one of three months’ committal, suspended for 12 months. Heather Williams QC and Adam Wagner (instructed by Robert Lizar Solicitors, of Manchester) appeared for the appellant; Richard Kimblin QC and Michael Fry (instructed by DLA Piper UK LLP) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Cuciurean v Secretary of State for Transport and another