Injunctions against persons unknown: Cuadrilla Bowland Ltd and others v Persons unknown and others

Cuadrilla Bowland Ltd and others v Persons unknown and others has useful practical implications for those considering the terms of prospective injunction proceedings, particularly where the injunction is to prevent behaviour by persons unknown. In that case, the proposed injunction was challenged because its terms were unclear.

Leggatt LJ stated that there were three different ways in which the terms of an injunction may be unclear:

  • Ambiguity in its terms, for example, use of words that have more than one meaning.
  • Uncertainty as to whether a term applies.
  • Use of language which is too convoluted, technical or “otherwise too opaque to be readily understandable by the person(s) to whom the injunction is addressed”.

In terms of practical advice, the above translates to the following:

Limiting the use of evaluative language

Whilst noting that although some degree of imprecision is sometimes inevitable, evaluative language, such as a prohibition against “unreasonably” obstructing the highway, is vague, because of the vast differences of opinion that might exist about what is an unreasonable obstruction.

Using precise language in respect of distance or time

Similarly, preventing a protest from taking place within a “short” distance of a location would be unduly vague. Distances should be clearly stated, for example, “within 100 metres”.

Not using language that is not likely to be understood by recipients of an injunction

This point is particularly important where the injunction is designed to prevent behaviour by persons unknown. In Cuadrilla, the original injunction sought to prevent trespass by anti-fracking protestors on the claimant’s land. The land was identified by reference to the title numbers under which it was registered at the Land Registry. The court’s view was that where legal knowledge is needed to understand the effect of a terms, its clarity will depend on whether the addressee of the injunction can be expected to obtain legal advice. That expectation might be reasonable in some circumstances (for example, in the course of litigation where the parties are already represented). However, it was unreasonable to impose on members of the public the cost of seeking legal advice to find out what they are prohibited from doing.

References to intention are acceptable

The court also examined whether references to the “intention” of persons unknown within an injunction made the terms sufficiently unclear. In Cuadrilla, persons were prevented from committing various acts along a particular part of a public highway “with the intention of damaging [the claimant], by obstructing, impeding or interfering with the lawful activities undertaken by it…” The defendants objected to the wording on the basis that intention is a legal concept. That in and of itself would appear to come under the third point above, being language which could not be easily understood by a person with no legal knowledge or training. Indeed, such a person might consider that the intention was simply to make a peaceful protest, rather than to cause damage to the claimant. Leggatt LJ gets around this point by reference to section 8 of the Criminal Justice Act 1967, which leaves the notion of intent in criminal cases to the jury’s own good sense. Accordingly, no elaboration on the concept of intent is required for members of the public to whom an injunction is addressed. Proof is to the criminal standard. As a result, where the injunction prohibits an act done with a particular intention, contempt of court for breach of that injunction will not be established if there is any reasonable doubt as to whether that intention existed.

A final point

Following the government’s moratorium on fracking, the appellants had no need to seek a variation of the injunction they had breached. However, the Court of Appeal stated that it was not open to the appellants to argue that they were not guilty of contempt of court on the basis that the injunction should not have been granted in the first place. A court order takes effect when it is made. It remains binding unless and until it is revoked by the court that made it, or on appeal. As long as the order is in effect, it is a contempt of court to disobey it.

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