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INEOS Upstream Ltd & Ors v Persons Unknown [2017] EWHC 2945 (Ch)

INEOS Upstream Ltd & Ors v Persons Unknown [2017] EWHC 2945 (Ch)

Acting for the UK’s largest holder of licences for onshore shale gas exploration, and a number of private individuals, Janet Bignell QC and Gavin Bennison have successfully obtained the long-term continuation of interim injunctions restraining a wide range of unlawful conduct by protestors opposed to hydraulic fracturing (‘fracking’). The injunctions were initially obtained on an ex parte basis in July 2017, and continuation was secured with only minor modification at an opposed hearing on 12 September 2017. At a three-day hearing in November 2017 before Morgan J which attracted considerable media interest, the claimants resisted applications to discharge the injunctions brought by two well-known “anti-fracking” campaigners.

The onshore extraction of shale gas by hydraulic fracturing (‘fracking’) in the UK has provoked significant opposition. Licensed onshore share gas operators have recently been targeted by co-ordinated and concerted campaigns of protest involving direct action. Some of this direct action has been both unlawful and dangerous, involving for instance trespass onto operators’ sites, obstruction of the public highway by ‘slow walks’, ‘lock-on’ protests and criminal damage. In 2017, the scale and scope of protest has escalated. A nationwide community of activists has increasingly targeted not only shale gas operators themselves, but also their upstream supply chain.

Against this background, in July 2017 the claimant shale gas operator took the unprecedented step of seeking pre-emptive injunctive relief to protect not only its operational sites and office premises, but also its upstream suppliers and contractors, from unlawful conduct. At an ex parte hearing on 28 July 2017, Morgan J granted interim injunctive relief restraining 5 categories of person unknown from engaging in acts of trespass, public or private nuisance, harassment or unlawful means conspiracy to commit a series of criminal offences with the intention to disrupt the claimants’ lawful activities. On the return date on 12 September 2017, Janet Bignell QC and Gavin Bennison successfully secured the continuation of the interim injunctions, including their unprecedented ‘supply chain’ element, with only minor modifications, in the face of robust opposition by two ‘anti-fracking’ campaigners, Joseph Boyd and Joseph Corré.

At a three-day hearing between 31 October 2017 and 2 November 2017, the applicants successfully resisted wide-ranging arguments that the injunctions granted were too broad in scope, improperly brought against persons unknown, and unlawfully interfered with the protestors’ rights to freedom of expression and assembly under Articles 10 and 11 of the European Convention on Human Rights. Morgan J held that the risks that the claimants would be targeted by unlawful forms of direct action, including trespass, interference with rights or way, obstruction of the public highway, theft and criminal damage, were imminent and real. Morgan J continued the interim injunctions pending trial or further order with relatively little modification, granting injunctions restraining the torts of trespass, private nuisance, interference with the right of access to and from the public highway, and unlawful means conspiracy. Attempts by the defendants to obtain the discharge of the novel “supply chain” injunction were unsuccessful. The Court also held that the tactic of “slow walking”, whereby protestors obstruct the passage of vehicles by walking at an unnaturally slow pace in front of them, was likely at trial to be held to be an unreasonable use of the public highway, and specifically restrained the tactics of “slow walking”, “lock-ons” and mounting vehicles, which are frequently deployed by protestors. Morgan J further held that a court considering whether to grant a final injunction would take the view that the claimants’ Convention rights should prevail over the Article 10 and 11 rights of the protestors.

Janet Bignell QC and Gavin Bennison appeared on behalf of the claimants, alongside Alan Maclean QC and Jason Pobjoy of Blackstone Chambers, and were instructed by Fieldfisher LLP. A copy of the Judgment can be found here



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