BY RUTH HAYHURST ON NOVEMBER 23, 2017
A High Court judge ruled this morning that an interim injunction sought by INEOS against anti-fracking protesters should continue.
The ruling, handed down by Mr Justice Morgan, extended most of the previous orders made to the claimants, INEOS and six landowners, in July and extended in September 2017.
But in response to a challenge earlier this month by two campaigners, Joe Boyd and Joe Corre, the judge removed a previous order against harassment and made changes to the wording of other sections.
The interim injunction applies to unnamed people (the defendants) and can now remain in force indefinitely unless there is an appeal against today’s ruling. There would need to be a trial for the order to be made permanent.
Mr Justice Morgan concluded:
“There is an imminent and real risk that, in the absence of injunctions, the Defendants will interfere with the legal rights of the Claimants.
“In the absence of injunctions, it is unlikely that the Claimants will receive any legal redress or compensation for the infringement of their rights.”
His ruling prevented the following activities:
Trespass on the claimants’ landInterference with the activities of INEOS and its contractorsUnlawful and unreasonable obstruction of the highway by actions including slow walking, climbing on vehicles and lock-on protests or a combination of them.Mr Justice Morgan rejected arguments by the legal teams for Mr Boyd and Mr Corre that the injunction was unnecessary and that INEOS had misled the court at a private hearing when the order was first granted.
He also dismissed the claim that the injunction would complicate the position of the police.
The judge’s ruling in detail“Real threat” to INEOS
INEOS had argued that it faced a “real threat” of interference from protests. The challengers said INEOS had not provided any evidence to support its case.
Mr Justice Morgan said today:
“I consider that the evidence makes it plain that (in the absence of injunctions) the protestors will seek to [subject INEOS to direct action protests]”.
“There is no reason to think that [without injunctions] INEOS will be treated any differently in the future from the way in which the other fracking operators have been treated in the past. I therefore consider that the risk of the infringement of INEOS’ rights is real.
“I consider that the risk of trespass on INEOS’ land by protestors is sufficiently imminent to justify appropriate intervention by the court.”
He said there was also a real risk of: interference with equipment and private rights of way and the threat of action to prevent claimants and contractors leaving the identified sites in the injunction.
Mr Justice Morgan said the injunction should apply to INEOS contractors, specifically mentioning the services company P R Marriott.
Without an injunction, he said:
“There is a continuing risk of obstruction of the highway outside P R Marriott’s depot and when the contractor is engaged to provide services to INEOS, those obstructions will harm INEOS.”
The challengers said INEOS had misled the court by claiming that the threat was also imminent.
Mr Justice Morgan said today:
“I do not consider that INEOS should be told to wait until it suffers harm from unlawful actions and then react at that time.”
He said this particularly applied to trespass and the establishment of protest camps.
“A clear injunction would allow the protestors to know what is permitted and what is not”.
Defending the order he granted in July, he said:
“The evidence did show that it was possible for protestors to trespass on land and set up protest camps on short notice.”
Obstruction of the highway
Obstructing the highway, particularly by slow walking protest, was a key issue at the hearing earlier this month at which the injunction was challenged.
Mr Justice Morgan said today the wording of the order needed to be clearer about what was and was not allowed. He said:
“I will restrain any obstruction which prevents the Claimants accessing the highway from any of their Sites with the intention of causing inconvenience and delay.
“I consider that the injunctions should expressly state that walking in front of vehicles with the object of slowing them down and with the intention of causing inconvenience and delay is not permitted.”
He also prohibited “blocking the highway with persons or things with a view to slowing down or stopping traffic” and climbing onto vehicles.
He said his ruling applied to INEOS and its contractors but he said contractors should be named in the injunction order.
INEOS had sought to include harassment in the injunction. The challengers had argued that the company had not stated clearly enough what this meant.
The Judge agreed:
“I do not favour the grant of an injunction against harassment largely because of the lack of clarity of that term.”
“There are likely to be strongly expressed objections to fracking. The expression of those objections may lead to the making of abusive and insulting comments about INEOS (and indeed about the individual Claimants who have made their land available to INEOS) where there might be real difficulty in knowing whether the conduct amounts of harassment.
“I do not consider that the Claimants have demonstrated a need for the court to make an order against harassment.
“I consider that such an order could have undesirable consequences which the court would wish to avoid.”
He did, however, give INEOS permission to apply in future for an injunction against harassment.
Criminal versus civil law
Opponents of the injunction had argued that the civil courts should leave it to the criminal law and police to deal with any criminal behaviour.
The judge disagreed:
“The detection and prosecution of alleged criminal offenders is generally left to public authorities but there is no reason for a civil court to deny to a claimant the advantages which ought to flow from the grant to it of an injunction.”
The role of the police
The challengers of the injunction had argued that it would complicate the positon of the police and would allow INEOS to tell the police what to do, possibly against the wishes of officers.
The judge said in his ruling:
“I do not see how that would be so. If the injunctions are complied with then the result ought to be that there would be less need for the police to be involved. If the injunctions are not complied with and the police are involved then they will be free to form their own decisions as to the appropriate response to the situation as they find it.”
INEOS’ proposed shale gas sites at Harthill and Woodsetts in South Yorkshire are bounded by footpaths. INEOS said the injunction did not seek to prevent a member of the public using those footpaths. But the challengers provided evidence that people were dissuaded from doing so because they feared they would inadvertently breach the injunction.
The judge did not outlaw the use of footpaths for protesting against fracking.
“If members of the public wish to use the footpath to protest against fracking but without otherwise trespassing on sites 2 (Harthill) and 7 (Woodsetts( then it remains to be seen whether there will be any complaint about such protests.”
Allegations that the court was misled
The challengers of the injunction accused INEOS of misleading the court at the original private hearing. They said there had been “several grave breaches” of the legal duty of candour and for this reason alone the injunction should be dismissed.
They said the judge had been misled because INEOS had relied on unrepresentative material and summaries. There was no “genuine urgency”, they said, and the company did not make it clear that the vast majority of anti-fracking protests were peaceful and lawful.
The challengers said INEOS Shale’s Operations Director, Tom Pickering, had overstated the extent to which there was a consensus that fracking was safe. The company was also criticised for not telling the court about safety failings at INEOS sites, falsely stating that the police supported the injunction and not explaining the likely effect of fracking on rural communities.
Mr Justice Morgan responded today:
“My overall assessment is that the court was not misled.
“I am not persuaded that the Claimants did break their duty of candour to the court.”
He said it was not appropriate for the court to “engage with the underlying disputes of fact”. He added:
“The court must preserve a sense of proportion in reacting to a complaint that it was misled. It must not allow the argument to descend into such a degree of detail and it is in danger of not being able to see the wood for the trees.”
Misled on law
When applying for the injunction, INEOS’ solicitors said there were no issues under the Human Rights Act.
The challengers said the judge had been misled and argued that the injunction breached the rights to freedom of expression and association under Articles 10 and 11 of the European Convention on Human Rights.
In his ruling, Mr Justice Morgan said:
“I consider that it is not open to the Defendants to rely on Articles 10 and 11 in an attempt to justify direct action for the purpose of harming the Claimants with a view to forcing them to give up their lawful business.
“I consider that I was not misled as to the basic principles as to Articles 10 and 11 b reason of ay breach by the Claimants of their duty of candour.”
Fracking and lawful protest
The judge said he didn’t “necessarily agree” with INEOS that the threatened protests were unlawful. “That question remains to be examined”, he said.
“I recognise that the grant of an interim injunction is likely to have a significant effect on some of the methods the Defendants wish to use in order to protest against INEOS’ intended fracking operations. I cannot predict whether this case will ever go to trial.”
He added that the court did not form a view a about whether fracking was in the public interest.
Clarity and precision
The judge said
“It is important in this case that nay injunction must be expressed in clear and precise terms. He suggested changes to the wording of sections of the order.”