Companies must be prepared to react quickly to threats of trespass and disruption to their businesses by groups campaigning on issues ranging from the environment to animal rights.
This was demonstrated in the recent application by British Airports Authority (BAA) against climate change protestors campaigning at
One of the grounds relied on by BAA was in the form of the Protection from Harassment Act 1997. The main intention behind this piece of legislation was to provide a remedy to protect vulnerable individuals from stalkers. Nevertheless, in the past it has been used against animal rights protestors: Huntingdon Life Sciences v Curtin & Ors [1998].
Section 1 of the 1997 Act states that “a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other”. In the Huntingdon Life Sciences case, the animal rights protestors had subjected employees to numerous threats of personal injury, resulting in staff having to arrive and leave work in convoys accompanied by police escorts. At first instance, the judge refused the injunction because of the number of organisations that the claimant had sought to injunct and the relief originally sought was very wide. This was cut down by the claimant when it appealed. The Court of Appeal granted the injunction as it was satisfied that:
a) the claimant was being subjected to harassment;
b) the reference in Section 1 of the 1997 Act to a “person” can include a company; and
c) the relief that the Court of Appeal was prepared to grant was sufficiently narrow so as not to deprive anyone of the right to demonstrate peacefully against experiments on animals.
Therefore the 1997 Act will not be an effective remedy against those whose intentions are simply to protest, however noisily this may be, without actual evidence of harassment. BAA failed in respect of this part of its application made under the 1997 Act for this very reason.
Another option is to use Part 25 of the Civil Procedure Rules (CPR) to apply for an interim injunction to restrain threatened trespass to private property. This was the basis of the applications last year by three power stations in ‘
The key to a successful application is identifying:
1) the land covered by the injunction. The court will want to be satisfied that the protesters will be clear where they may not go;
2) any areas of land not owned by the applicant or which are leased — the terms of the order originally sought by BAA included the underground stations owned and operated by Transport for
3) the defendants to the application — it is likely the claimant will not know the identity of the protesters. Even if some have given their names to the press, these may be false. Before the introduction of the CPR it was not possible to designate a defendant to an action by description rather than by name. In Bloomsbury Publishing Group and JK Rowling v Newsgroup Newspapers and persons unknown [2003], the Vice Chancellor held that defendants could be joined and injuncted by description provided the description is sufficiently certain so as to be able to identify both those who are included in the injunction and those who are excluded; and
4) the method of service of the injunction. If the application is against ‘persons unknown’, you will need to obtain an order for alternative service, such as affixing copies on posts round the edge of the site being protected.
The third possible avenue to consider when faced with trespassers is obtaining an interim possession order under CPR Part 55. This is a useful remedy in situations where you have no advance notice that protesters are going to set up camp on your land. Under CPR Part 55 the court can order the defendants to leave the land they are occupying within 24 hours and not to return within 12 months of the date of the order.
In summary, in recent years the court has shown a willingness to safeguard the interests of businesses in the face of unlawful protest. The court will carry out a balancing act between the legitimate right to protest and a company’s business interests and protection of its property.
While companies can obtain protection from the court, they must be mindful of the need to frame any application carefully. Failure to do so can be costly from a public relations and financial perspective and can also cause unnecessary delay.
Val Davies is a partner and Helen Masters of counsel in Norton Rose’s dispute resolution department.