The Guardian and Observer journalist George Monbiot has recently written on the subject of interim injunctions as applied to protesters, giving a misleadingly bleak account of their nature. He called the injunctions a “parallel legal system operating without the defences available in criminal law”. In a tweet, Monbiot described the injunctions as a “new and deadly” way of shutting down protest. The general thrust of his argument was that injunctions have been used as a form of criminal law, without any of its corresponding protections, in order to unacceptably interfere with rights to freedom of expression. He also condemned the use of “persons unknown” injunctions. Monbiot’s analysis closely follows the commentary by the barrister Adam Wagner, who has called these injunctions “privatised criminal law”.

Far from being a particularly novel device, interim injunctions are a straightforward part of the civil law. An applicant may, for instance, seek an interim injunction to prevent a respondent from infringing copyright, to prevent a nuisance (excessive noise, for example), or to restrain publication on misuse of private information grounds. Should the respondent breach the injunction, the court may make a finding of contempt, resulting in a sanction. If the breach is serious, the sanction could then be imprisonment. With a sanction, the court is not only interested in upholding its orders. It is also justified in sanctioning the contemnor, “since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity” (per Lord Diplock in Attorney-General v Times Newspapers Ltd [1974] AC 273).

Monbiot does not appear to realize that oil companies are exercising their own rights

Persons unknown injunctions are more recent. An early case concerned leaked copies of Harry Potter and the Order of the Phoenix prior to publication. They have since been used against computer hackers stealing information, anonymous defamers online and blackmailers, as well as protestors and paparazzi for trespass and other torts. In granting the injunction, the persons unknown must be capable of being identified, notice must be possible, the prohibited acts in the injunction must correspond to the relevant torts, there must be a sufficiently real and imminent risk that torts will be committed, and the terms of the injunction should not be so wide as to unjustly prohibit lawful conduct. Given the safeguards in procedure, it does not seem to be particularly objectionable that wrongdoers who are ultimately identifiable can be restrained from specific action that would constitute a wrong.

Monbiot, in his article, does not name specific claims made by the applicants in respect of the interim injunctions. In each case, the facts disclose a clear cause of action. In the HS2 Ltd case, the underlying claim was for nuisance and trespass. The protesters had trespassed on HS2 land, disrupted works, and caused delay and inconvenience on surrounding access roads. According to a witness statement, £121.62 million had been incurred in dealing with direct action up to December 2021. As Knowles J described, the evidence was “plentiful”. The direct action protest had caused, according to the evidence, “delays to works, sabotage of works, damage to equipment, psychological and physical injury to those working on the HS2 Scheme and financial cost”. In Shell UK Limited v Persons Unknown, the respondents had been, inter alia, blocking access to oil refineries, boarding and blocking tankers, throwing paint on Shell premises and smashing petrol pump display screens at petrol stations. In Transport for London v Lee and Ors [2022] EWHC 3102 (KB), the respondents blocked major roads, often glueing themselves to the surface to cause maximum obstruction. The underlying claims were trespass and nuisance.

The test for interim injunctions is set out in American Cyanamid. The test has three limbs: 1) Is there a serious question to be tried? 2) Would damages be an adequate remedy for a party injured by the court’s grant of, or its failure to grant, an injunction? and 3) If not, where does the “balance of convenience” lie? Monbiot makes much of the fact that the first limb does not require a claim to be proved. Yet, with regards to applications where article 10 ECHR rights to freedom of expression are engaged, and where the respondents are unrepresented, the test which has applied is whether the applicant will likely obtain an injunction at trial. It is also true that the conduct which the applicants have sought to restrain in these cases had often already taken place and was due to continue, as evidenced by statements made by protesters themselves. Just Stop Oil and Insulate Britain, for instance, will often give warnings that their conduct will continue indefinitely until their demands are met. Insulate Britain said the following in response to an injunction:

INJUNCTION? WHAT INJUNCTION?

… Yesterday, 52 people blocked the M25, in breach of the terms of an

injunction granted to the Highways Agency on 22nd September.

A second injunction was granted on 24th September covering the A2, A20

and A2070 trunk roads and M2 and M20 motorway, after an Insulate Britain

action outside the Port of Dover last Thursday.

Insulate Britain says actions will continue until the government makes a

meaningful commitment to insulate all of Britain’s 29 million leaky homes

by 2030, which are amongst the oldest and most energy inefficient in Europe.

Monbiot seems to assume that protest magically renders otherwise unlawful action lawful. He should be reminded that article 10 rights to freedom of expression are not absolute. In DPP v Cuciurean, Lord Burnett found that there was no right to protest on privately owned land or publicly owned land from which the public are generally excluded. Indeed, such action constitutes an interference with the protection of property. Monbiot objects to oil companies using injunctions, but he does not appear to realise that these companies are exercising their own rights. With regards to obstruction on roads, article 10 does permit interference, since the rights of others are affected.

The actions of protesters have gone far beyond that which is protected by law

As much as Monbiot objects to the apparent lack of safeguards, article 10 of the ECHR is not ignored in applications for interim injunctions. InTransport for London v Lee and Ors, for instance, Freedman J applied Ziegler when considering interference with protest rights. In finding that an interim injunction should be granted, Freedman J first took into account that there had been substantial and unreasonable interference with the rights of others caused by the protesters, which took the form of economic harm; together with less tangible harm, such as the impact on missed appointments and meetings for members of the public. Second, there was the risk to life due to the impact of emergency vehicles delays. Third, there was the diversion of policing resources necessary to police the protests. Fourth, the intention by JSO was to deliberately cause obstruction, rather than create obstruction as an incidental part of the protest. Fifth, before going on to list even further factors in favour of granting the interim injunction, Freedman J noted that the roads were strategic, meaning that it was difficult for traffic to reroute. This gives a good demonstration of the amount of detail in these assessments.

When it comes to proceedings regarding contempt of court itself in the event that the injunction has been breached, there are even further safeguards. With regards to proving a breach, the claimant must show that the defendants: 1) knew of the order 2) committed acts which breached the order and 3) knew that they were doing acts which breached the order. Even though the respondents were “persons unknown” previously, this standard still applies at contempt proceedings. In order to establish contempt of court, the claimant must show to the criminal standard of proof — beyond reasonable doubt — that a breach happened (Re Bramblevale [1970] Ch 128). Monbiot objects to injunctions (particularly persons unknown injunctions), but he does not take into account the further protections in quasi-criminal contempt proceedings.

Monbiot will often frame his arguments to paint a frightening picture of the future. Here, he presents valiant protesters “having the temerity to oppose the destruction of the habitable planet” being thwarted by wicked companies, abusing the law for their nefarious purposes — with the courts presiding over a failure of justice. The law, however, recognises limits on protest rights. Companies and the public have rights, too. In recent years, the actions of protesters have gone far beyond that which is protected by law to unduly interfere with the rights of others. Interim injunctions provide a reasonable protection of those rights.