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Lochlinn Parker, Director of Good Law Practice, writes on how injunctions are being used to suppress protest in the UK.
In his article in today’s Guardian, George Monbiot highlights the use of injunctions brought by companies, public bodies, and now by the central government to suppress protest in the UK.
Here is what you should know:
1. An injunction is a court order seeking to control the activity of a person or persons, usually to prevent them from doing something.
An injunction can be brought against anyone involved in protest that has or threatens to trespass on private land or interfere with commercial activity or creates a public or private nuisance (amongst other ‘wrongs’ that are unlawful in a criminal or civil way).
The person against whom the injunction is sought will be the ‘Defendant’ in the case. The organisation/company making the application is the ‘Claimant’.
The Defendant can be a named individual or can be ‘persons unknown’. ‘Persons unknown’ means that the injunction applies to the world at large. Where someone is not actually involved in the protest or there is no evidence of them intending to commit the wrong alleged (‘the tort’) they can challenge their inclusion.
A court will consider whether granting the injunction is “just and convenient to do so,” and that the order is proportionate in the circumstances. If the wrong has already been committed, then the Claimant will usually need to show that the defendant’s actions are likely to be repeated or are continuing. If the injunction is sought in advance, to prevent anticipated unlawful behaviour, then the courts should take a more stringent approach. This puts a much greater burden on the Claimant to prove that there is a ‘real and immediate’ risk of the wrong being committed, that the Defendant is strongly likely to commit the wrong without the injunction, and the harm caused to the Claimant will be grave and irreparable if the activity is not restrained.
2. Interim or temporary injunctions can be granted swiftly.
The usual procedure is that a Claimant will apply for an injunction from the court on a temporary basis and then serve the papers on Defendants. The court will then hold a hearing within 7 days (the ‘return date’) to decide whether the temporary or final injunction should be granted. Sometimes the final decision will happen at a hearing some months later. Seeking to vary or discharge an injunction can be difficult, but it is not impossible.
3. Challenging an injunction is difficult but not impossible.
Anyone named in the injunction proceedings has a right to vary (i.e., challenge the terms of the injunction) or discharge it (i.e., challenge the injunction entirely or their inclusion in it). If you want to challenge the injunction, then a Claimant may seek to add you as a Defendant (though see below at point 5.)
The Court must be satisfied that an injunction is a proportionate response to the alleged wrongs committed, in order to grant it. The threshold is not high however. In UK law, property rights will trump the right to protest in almost every case. Therefore, an injunction seeking to prevent trespass will be very hard to challenge. Injunctions that have sought to restrict the right to protest away from the land in question have been successfully challenged. In addition, the terms of injunctions have been pared back or amended, and Defendants removed from proceedings through successful challenges.
4. Challenging an injunction, or its terms, or your inclusion in it is risky.
The usual rule in civil proceedings is that the loser pays the winner’s reasonable and proportionate costs. In injunctions, if a court has agreed that a Claimant has had to go to court to stop ‘wrongs’ being committed, then the persons who caused that application to be made are usually ordered to pay the costs of it. This is regardless of whether the Defendant seeks to challenge the injunction or even engage in the process. Costs are usually divided by the Defendants named on the injunction, but not always.
Putting it plainly, you can be made to pay costs even if you have not done anything wrong at all or resisted the grant of an injunction.
If you seek to challenge the injunction or its terms or your inclusion in it and cause the Claimant to incur further legal costs, especially if another hearing is required, your risk of being ordered to pay costs, and the amount of those costs will increase. Note that where the Claimant is seeking an injunction against Persons Unknown, then the court will usually require a further hearing in any event.
Legal Aid is not available to vary or discharge an injunction so if you are a Defendant (or apply to be a Defendant) then you will need to fund your own representation and plan for adverse costs.
You can challenge the amount of a costs bill. As referred to above, costs must be both reasonably and proportionately incurred. While a court may consider it was reasonable to make the application and to spend time preparing witness statements and exhibits to support the argument that an injunction is necessary, they may not accept the rate that the lawyers charge or the number of hours spent. However, again, if you challenge the costs and are not successful in reducing them then you may be ordered to pay the costs of the billing process as well.
Putting it plainly, even if the injunction should not be granted, it is risky and very expensive for a protestor to challenge it.
5. If you are not named but could be affected by the injunction, there may be a way to seek to vary or discharge it without as much cost risk as if you were a Defendant.
The Civil Procedure Rules (40.9) say that “a person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.” This has been used successfully in a number of cases to make submissions and win concessions on the terms of an injunction. By making representations as an Interested Party you do not become a Defendant, and therefore the usual costs rules do not apply. A Claimant will need to apply to the Court to make the Interested Person a Defendant in order to seek to enforce costs against them. Or the Court can use its powers under section 51 of the Senior Courts Act 1981 to order costs against a non-party, however, this is supposed to apply only where the non-party is actually the controlling party in the litigation. It has not been tested in the protest arena (to our knowledge), and in any event the non-party has to be notified and given an opportunity to make representations (CPR 46.2)
Where the Interested Person has been successful in amending the terms of the injunction or providing submissions that have assisted the court in considering the injunction then there is far less of an argument for enforcing costs against that person. This does not remove the need to fund your own lawyers, however.
6. Other ways of seeking to avoid the costs of injunction proceedings.
It is sometimes possible to agree to be bound by an undertaking to the court that you will not commit the ‘wrong’ that the injunction is seeking to prevent, and in those circumstances, Claimants usually are willing to not pursue their costs, or at least restrict the costs sought. Early engagement with the Claimant is usually vital to achieve that end.
Putting it plainly, if you agree to what the Claimant wants your costs should be lower.
7. Claimants can seek the cost of commercial losses associated with the action taken against them as part of injunction proceedings, and separate to their legal costs.
Claimants sometimes also add the losses they allege occurred from protests that have stopped work on sites for hours or days. These losses can be high and challenging them can be difficult and expensive as the usual rules on civil claims and legal fees apply.
8. If you are accused of breaching an injunction, what can you do?
Injunctions will almost always have a ‘penal notice’ attached, which sets out that breaching the injunction could result in ‘committal proceedings’, which are quasi criminal proceedings and could result in imprisonment or a fine. The criminal standard of proof applies. Some injunctions can give a power of arrest for alleged breach. Legal Aid is available in these circumstances, regardless of your income.