John Winder / “Stop HS2” poster / CC BY-SA 2.0

HS2 is currently in the High Court (Birmingham District Registry) making the case for the grant of a ‘route-wide’ injunction to prevent protestors disrupting the works along it entire length. HS2 has already obtained injunctions in respect of specific locations; however, so far as the company is concerned, much time and money could be saved if it did not have to keep returning to court in order to obtain a multitude of injunctions to deal with any number of protest encampments and so forth along the  line. The case has attracted some media attention and there was an item on Radio 4’s Today Programme in which Shami Chakrabarti voiced concerns about the scope of the proposed injunction. I have endeavoured to distill the main arguments below; for copies of key documents and skeleton arguments see Government page HS2 Route Wide Proceedings.

The torts at issue

The injunction is being sought to prevent the continuance or reoccurrence of certain activities which, it is argued, constitute torts in respect of which HS2 is entitled to relief. In particular, it is claimed that many of the protests involve trespass upon land in which HS2 owns or has temporary possession powers (in Secretary of State for Transport & HS2 v Persons Unknown (Harvil Road) [2019] EWHC 1437 (Ch) it was held that temporary possession powers constituted a sufficient interest in property to justify injunctive relief). It is also claimed that activities which obstruct access to land from the public highway constitute private nuisance. Activities which impeded the flow of traffic along  on the public highway constitute public nuisance and a private cause of action lies in respect of harms which exceed the inconveniences suffered by the general public.

The remedy sought

There are two unusual features about the injunction being sought by HS2. Firstly, although a long list of specific persons are identified in the documents, relief is also being sought against ‘persons unknown’ meaning any as yet unascertained person who has not hitherto engaged in ‘direct action’, but may be thinking of doing so; and even any person who has not yet thought about it at all, but may do so in future. The second aspect is the geographic scope of the proposed injunction which would stretch along the entire route.

As regards the first point, there has been a flurry of case law in recent years and the Court of Appeal has firmly concluded that there is no doctrinal or conceptual reason why an injunction should not be drafted in such terms. The leading case at present is Canada Goose v Persons Unknown [2020] EWCA Civ 303 where the Court set out detailed guidance for determining in what circumstances it is appropriate to grant such an injunction and the form it should take. In short there must be a ‘sufficiently real and imminent risk of a tort being committed’ and in this respect it is worth noting that in Secretary of State for Transport and HS2 Ltd v Persons Unknown [2019] EWHC 1437 (Ch) it was held that an existing course of conduct would provide strong evidence of the need for injunctive relief.

The second unusual feature of the injunction being sought is its geographic scope and on this there has been rather less case law. Nevertheless, HS2 assert that there is no doctrinal principle which stipulates that an injunction must adhere to some notional idea as to what constitutes a reasonable geographic extent. The skeleton argument confidently proclaims that ‘it may operate against the world.’ The one case which has tackled this issue also concerns transport and is highly topical – National Highways Ltd v Persons Unknown & others [2021] EWHC 3081 (QB) arising from the Insulate Britain campaign of blocking roads and motorways. In this case an injunction covering 4,300 miles of roads was granted.

Human Rights Arguments

The right to protest is protected by Article 10 ECHR on freedom of expression and Article 11 on freedom of assembly and association. HS2 argue that these rights are simply not engaged because there is no right to protest on private land; there is no ‘freedom of forum’ as it was put in DPP v Cuciurean [2022] EWHC 736 (Admin). Even if these rights were engaged, it is argued, it is important to note that they are far from absolute in that both have inbuilt checks and balances meaning that they must be applied in a way which is commensurate with the wider requirements of a democratic society.

Thoughts and Observations

One must bear in mind the wider context of this action which is the desire of HS2 to be left in peace to implement the project which it has been charged to deliver by more than one democratically elected government of varying political stripes (subject of course to the oversight of regulators and other parties tasked with ensuring compliance with its statutory powers, environmental commitments and so forth). The arduous nature of the hybrid Bill procedure under which the project has been authorized has been dealt with extensively elsewhere on these pages. Moreover, the system has been subject to judicial scrutiny at the highest level on a number of occasions: see, for example, R (on the application of HS2 Action Alliance Ltd (and others) v Secretary of State for Transport [2014] UKSC 3; R (on the application of Packham) v Secretary of State for Transport [2020] EWCA Civ 1004.

To what extent should unelected and unaccountable individuals, who disagree with a project, be in a position to ignore the outcome of the exhaustive planning process and use physical intervention to impose their own views as to what the outcome should have been? The skeleton arguments cite the following passage from Cuciurean in which the Court of Appeal made it clear that Articles 10 and 11 are not trump cards which can be used to ride roughshod over the planning system and drive a coach and horses through common law rights. Thus, Article 10 and 11 “…do not sanction a right to use geurrilla tactics endlessly to delay and increase the cost of an infrastructure project which has been subjected to the most detailed public scrutiny, including in Parliament.” (at [84])

It now seems well established that an injunction can be drafted in such a way that it encompasses  ‘persons unknown.’ The issue of geographic extent is less well tested but it is difficult to conceive of a conceptual or doctrinal reason why an injunction should not cover the entire project. No one would question the national geographic extent of an injunction against the publication of a defamatory material. Clearly, the remedy would be entirely undermined if it only related to one part of the country as information can travel easily. If one accepts that HS2 is a single project, then similar reasoning can be applied; a limited injunction which simply displaces disruption further up or down the line does little to protect the integrity of the project as a whole.

We shall await the outcome of these proceedings with interest and shall return to them in due course.