Written by Lauren Godfrey, barrister at Gatehouse Chambers (an earlier slightly abridged version of this article was published by LexisNexis as a blog).
In National Highways Ltd v Persons unknown and others  EWCA Civ 182, the Court of Appeal overturned a High Court judge’s refusal to grant summary judgment in claims for final injunctions in circumstances where the defendants had failed to engage with the proceedings by either filing defences or any evidence in opposition to the claims. The Court of Appeal criticised the first instance judge’s approach as impermissible speculation as to what defences might be advanced at trial.
This case is of interest in the context of the Civil Procedure Rules and the extent to which a court could and should assess evidential disputes before entering summary judgment; particularly where there has been a wholesale failure by defendants to engage in proceedings.
The appeal is also another example of the Court of Appeal being prepared to grant an injunction on anticipatory basis against unnamed defendants (although this pending the outcome of the Supreme Court in Barking – see further below).
Interestingly, the Court of Appeal noted (at para ) that the network operated by the claimant was distinct from the notion of the highway at common law because there was a statutory restriction on any pedestrian use other than for accident or emergencies (which does not cover protest): see the Motorways Traffic (England and Wales) Regulations 1982, SI 1982/1163, reg 15. In fact, as the court noted, this made the national highway network distinct from other private or even public land and it might be thought to accord with commonsense.
The practical effect of this statutory provision might have been that the defendants could not rely on a lawful excuse defence, whether framed in human rights principles or otherwise. However, the provision was not relied upon by the claimant either at first instance or in argument before the Court of Appeal.
The claimant, National Highways Limited is the highways authority for the Strategic Road Network (‘SRN’) pursuant to section 1A of the Highways Act 1980 and has the physical extent of the highway vested in it.
The litigation concerned claims by the claimant for interim and final injunctions to prevent ‘Insulate Britain’ protesters from shutting the M25 and associated road network (including feeder roads). The claimant sought the interim and final injunctions to protect the highway network relying on underlying claims in the torts of trespass and nuisance (whether private or public).
The judge at first instance had been required to consider whether to continue interim injunctions at a return date, pending a full trial or accede to the claimant’s application to enter summary judgment making the injunctions final.
The judge also considered the claimant’s claim for a declaration of its rights as owner of the M25 and associated road network. However, somewhat controversially, the judge found that such a declaration served no useful purpose and may cause confusion given the more elaborate and balanced terms of the injunction orders.
The claimant was asking the court, in essence, to make the injunctions final by entering summary judgment against these 138 defendants. The lower court, noting that an injunction is not a cause of action, required the claimant to evidence on the balance of probabilities that each defendant was responsible for actionable tortious wrongs, principally nuisance.
Of those named defendants, 29 had been pursued successfully for contempt due to breach of the terms of interim injunctions and there were judgments made in the contempt proceedings against each of these individuals. A further 109 were arrested by police and thus named, the evidence, as the judge noted, was significantly general and did not establish that each individual was responsible in the tort of nuisance.
Only three named defendants had provided a defence or any other formal response to the claims; these tended to deal with facts supporting the specific defendant not being present or part of the protests as alleged and two defendants were released from the claim on that basis. Otherwise, the named defendants did not engage with the proceedings formally; including failing to respond to the application for summary judgment or filing any evidence.
In respect of the 29 defendants who had been found to be in contempt, the judge was prepared to accept the judgments on contempt as being dispositive of breach and thus established nuisance such that this claim was made out. Thus, the court made final injunctions against these defendants.
However, in respect of the further 109 named defendants, who were merely arrested by police, the judge decided that the evidence adduced by the claimant was significantly general and did not establish that each individual was responsible in the tort of nuisance. Thus, the judge decided that these were matters that would have to be subject of a trial. In respect of these defendants, the judge merely continued the interim injunction pending trial.
The claimant appealed the refusal to grant summary judgment in circumstances where no defence or formal evidence was submitted by the named defendants to the Court below or the Court of Appeal.
The Court of Appeal decision
The Court of Appeal characterized the judge’s error in these terms:
‘… the judge did correctly identify the test for the grant of an anticipatory injunction in  of his judgment, unfortunately he fell into error in considering the question whether the injunction granted should be final or interim. His error was in making the assumption that, before summary judgment for a final anticipatory injunction could be granted, [the claimant] had to demonstrate in relation to each defendant that that defendant had committed the tort of trespass or nuisance and that there was no defence to a claim that such a tort had been committed. That error infected both his approach as to whether a final anticipatory injunction should be granted and as to whether summary judgment should be granted’. (at para )
The difficulty for the judge in respect of the anticipatory injunction is that the whole nature of an anticipatory breach is that the anticipatory nature of the breach means that there ‘… is certainly no requirement for the grant of a final injunction that the claimant prove that the relevant tort has already been committed’. (para ).
Vastint Leeds BV v Persons Unknown  EWHC 2456 (Ch);  4 WLR 2 (at para [31(2)] of that decision) is authority for the proposition that in a claim for an anticipatory injunction, it is no obstacle that ‘the claimant’s cause of action is not complete’.
The Judge at first instance had delineated between those found guilty of contempt as providing evidence of prior breach and thus granted a final injunction, and those who had not been found to have breached and whose breach thus was solely anticipatory.
Further the judge had applied the wrong test in asking whether there was any potential defence to the claim for the defendants. The defendants had failed to enter a defence or to provide any formal evidence in support of their position.
In this regard, the claimant’s relied on the dicta of Cockerill J in King v Stiefel  EWHC 1045:
‘21. The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that -even bearing well in mind all of those points – it would be contrary to principle for a case to proceed to trial.
22. So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that something may turn up…’ (at paras – of that decision)
Thus, in respect of the 109 named, the Court of Appeal concluded:
‘41. It is no answer to the failure to serve a defence or any evidence that, as the judge seems to have thought (see [35(5)] of the judgment), the defendants’ general attitude was of disinterest in Court proceedings. Whatever the motive for the silence before the judge, it was indicative of the absence of any arguable defence to the claim for a final injunction. Certainly it was not for the judge to speculate as to what defence might be available. That is an example of impermissible “Micawberism” which is deprecated in the authorities, most recently in King v Stiefel. If the judge had applied the right test under CPR 24.2 and had had proper regard to CPR 24.5, he would and should have concluded that none of the 109 named defendants had any realistic prospect of successfully defending the claim at trial and that accordingly, [the claimant] was entitled to a final injunction against those defendants’.
The Court of Appeal also granted a final injunction against ‘persons unknown’ consistent the claimant’s submission that:
‘… whilst the law had been in a state of flux, the decision of the Court of Appeal in London Borough of Barking and Dagenham v Persons Unknown  EWCA Civ 13;  2 WLR 946 represents the law as it currently stands. In that case, this Court held that there was power under section 37 of the Senior Courts Act 1981 to grant a final injunction against persons who were unknown and unidentified, so-called “newcomers”. This Court held there was no jurisdictional obstacle to such an injunction, rejecting the reasoning of the earlier Court of Appeal decision in Canada Goose.’
The court noted that there was an appeal to the Supreme Court pending in respect of the Barking case in the Court of Appeal but left it to the lower court to discharge the injunction against persons unknown if the approach in Barking was overturned by the Supreme Court.
The first instance judgment appeared to be a hedged victory for the right to protest, the Court of Appeal is significantly more in accordance with orthodox principles; though it is yet to be seen what the Supreme Court makes of the Barking.
- Court: Court of Appeal, Civil Division
- Judge: Dame Victoria Sharp P, Sir Julian Flaux C and Lord Justice Lewison
- Date of judgment: 23 February 2023