Case No:  A00BC373 
Neutral citation number: [2014] EWHC 3086 (Ch)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre 
1 Bridge Street West
Manchester M60 9DJ

Thursday, 28 August 2014

BEFORE:

HIS HONOUR JUDGE HODGE QC sitting as a Judge of the High Court

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BETWEEN:

MR THOMAS ANDREW WENSLEY AND 11 OTHERS
Claimants
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PERSONS UNKNOWN AND OTHERS
Defendants

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MR TOM ROSCOE (instructed by Eversheds LLP) appeared on behalf of the Claimant

MR SIMON POOK (solicitor of Robert Lizars Solicitors, agents for Harrison Grant) appeared on behalf of Ms Tina Rothery, added as the Third Defendant

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Judgment

1.	
JUDGE HODGE QC:  This is my extemporary judgment on the first hearing of a possession claim brought by Mr Thomas Andrew Wensley and eleven other claimants against Persons Unknown.  The Claim Form was issued in the Blackpool County Court on Thursday 21 August 2014, which is last Thursday.  On the same day the proceedings were transferred to the Manchester County Court by order of District Judge Law.  Later on the same day I ordered that the claim should be transferred to the Chancery Division of the High Court.  I did so of the court’s own initiative pursuant to Section 42 (2) and (3) of the County Courts Act 1984.  I did so because it seemed to me that one of the criteria for issuing a Claim Form in the High Court was satisfied in the present case.  The relevant criterion was that set out in paragraph 1.3(3) of Practice Direction 55A relating to possession claims, namely that the claim was against trespassers and there was a substantial risk of public disturbance or of serious harm to persons or property which properly required immediate determination.

2.	A hearing was fixed to take place today (Thursday 28 August) in Manchester.  I fixed a time of 11.00 am to allow a little more time for people to travel from the Kirkham area of Lancashire.  The proceedings were served on the land in question on the evening of the day of issue, Thursday 21 August, beginning at about 6.25pm.  The claimants are represented by Mr Tom Roscoe (of counsel) who has produced a detailed written skeleton argument dated 27 August 2014.  There are a number of people who have attended court today, specifically a solicitor, Mr Simon Pook, of Robert Lizars (as agent for a firm of solicitors in London, Harrison Grant), who appears for a Ms Tina Rothery, who is to be joined as the third defendant.  Mr Pook complained that he had had insufficient time to consider and assimilate all of the court documents.  I therefore allowed him some time before lunch to do so; and after lunch he indicated that, nevertheless, he would be applying for an adjournment because he wished to put in evidence in answer to the claim.  

3.	The evidence from the claimants is contained within, first, the extended Particulars of Claim, which have attached a number of documents.  There are also two witness statements: one is from the first-named claimant, Mr Thomas Andrew Wensley, who is the brother of the second claimant, and the son of the third claimant.  His witness statement is dated 20 August 2014 and has two exhibits, TAW1 and 2.  There is also a witness statement from Mr William Armstrong, also dated 20 August 2014, together with exhibits WA1 through to WA7.  Mr Armstrong is the Business Resilience Manager employed by Cuadrilla Resources Limited, which is the parent company of the fourth and twelfth claimant companies.  There is as yet no evidence from any person on the land, or from the third defendant.  

4.	I can take the background to this claim from Mr Roscoe’s skeleton argument.  These proceedings concern the occupation of a field near Blackpool and forming part of Plumpton Hall Farm, off the Preston New Road (which is the A583).  That field was first occupied in the early hours of the morning of Thursday 7 August 2014.  The occupation was by a number of protestors, or campaigners, who opposed the potential use of land in that area of Lancashire for the purposes of “fracking”.  The proceedings also concern adjoining and neighbouring land as to which there is a concern that it may be targeted for similar purposes in connection with anti-fracking, environmental, or similar protests or events.  The land which has been occupied is registered under title number LAN679804.  The registered proprietors are the first and second claimants.  The land forms part of a dairy farm owned and farmed by the Wensley family.  The remainder of the farm is owned by the first, second and third claimants, the other relevant registered title number being LAN146773, which is owned by the second and third claimants.  The fourth claimant is Cuadrilla Bowland Limited.  It is part of the Cuadrilla group of companies which carry on business exploring for, and extracting, natural gas and oil.  Cuadrilla Bowland Limited has been granted a licence, on a non-exclusive basis, to occupy parts of Plumpton Hall Farm in connection with those activities.  There is as yet no planning permission to explore for gas or to carry out fracking.  There is a planning application pending for that purpose.  

5.	The fifth to ninth claimants all own land in close proximity to the Plumpton Hall Farm land.  That land is to the north of Plumpton Hall Farm.  The fifth to seventh claimants own land which is registered under title number LAN926719.  The eighth and ninth claimants own land which is registered under title number LAN926476; and the eighth claimant alone owns land registered under title LAN107178.  That is all land in relatively close proximity to Plumpton Hall Farm and the part of it which has been occupied by protestors or campaigners.

6.	There is evidence that whilst the occupation of part of Plumpton Hall Farm has been proceeding, some protestors or campaigners may have been taking preliminary steps to trespass upon Roseacre Hall Farm which, as the crow flies, is about four miles away from the land which has been occupied, but by car is eight miles away.  Roseacre Hall Farm is owned by the tenth and eleventh claimants and is registered under title number LAN680932.  The twelfth claimant, Cuadrilla Elswick Limited, has been granted a licence to occupy parts of Roseacre Hall Farm, also for exploratory and fracking purposes.  Again, there is as yet no subsisting planning permission for those activities.

7.	In these proceedings the claimants between them seek (1) an order for possession of the land which has been occupied; (2) injunctive relief preventing further trespass upon the land which has been occupied, the remainder of Plumpton Hall Farm, the neighbouring land owned by the fifth to ninth claimants, and the land at Roseacre Hall Farm; (3) declaratory relief; and, in the event that the claimants are able to discover individual protestors’ names, (4) costs and damages for trespass.  

8.	Mr Pook and some of the other occupiers have sought an adjournment of these proceedings in order to put in evidence.  When I enquired as to the nature of the evidence that Mr Pook sought to place before the court, he indicated that his client wished to challenge certain of the claimants’ evidence as to the use, or misuse, to which the occupied land had been put.  He indicated that there was no challenge to the claimants’ entitlement to possession of the land; but the evidence would go to aspects of the claimants’ evidence relevant to damages, and also to the scope of any injunction that should be granted.  Mr Pook made the point that there was no one presently on the land which had been occupied.  He questioned whether the claimants were seeking injunctive relief in terms which were far too wide.  

9.	When opening the case before the short adjournment, Mr Roscoe had indicated that, so far as the claimants were aware, the occupation of the land appeared to have ceased.  He said that a number of gates were, however, still secured by bicycle locks, and there was hazard warning tape still on the land.  He indicated that no one from the claimants’ side had yet been able to go on to the site.  The claimants entertained residual concerns if there were to be no order for possession confirming the entitlement of the first and second claimants to possession of that part of the farm which had been occupied by protestors or campaigners.  He indicated that there was still some interference with the claimants’ rights of possession.  He invited the court to make a possession order, if only on what he described as a “belt and braces” basis.  Mr Pook indicated that since no one was still in occupation of the land, there would be no harm if a possession order was issued.  As I pointed out, it is not sufficient justification for the court to make an order that no harm will be caused if the order is made; but I am satisfied, on the evidence, and in view of the history of the matter, that the court should afford the claimants, or to be more precise the first and second claimants, the clarity and certainty of making the order for possession to which I am satisfied, on the evidence, that they are clearly entitled.  They are the registered proprietors of the land which has been the subject of the occupation, and they are entitled to an order for possession.  I am also satisfied that they are entitled to, and should be granted, a declaration that they are entitled to be in possession of the land, and that no one has any right to dispossess them.

10.	Given that a possession order is being granted, the immediate need for this claim has been addressed; but Mr Roscoe seeks, in addition, injunctive relief to prevent anyone else from entering upon either the land, the subject of the previous occupation, or any of the neighbouring or adjoining land of any of the claimants which has been identified in the proceedings.  Such injunction should, Mr Roscoe submits, be directed to persons entering or remaining on land at Little Plumpton and at Roseacre, and should be directed to forbidding anyone from entering or remaining upon, obstructing, impeding or otherwise interfering with the activities of the claimants, their employees, agents, contractors or licensees at any of the relevant parcels of land, the subject matter of the claim, in connection with anti-fracking, environmental, or similar protests or events.  

11.	Since I am prepared to accede to Mr Pook’s request for an adjournment, it is appropriate for the court to consider whether there should be interim injunctive relief over until the effective hearing of this claim on the return date.  On an application for interim injunctive relief, the court has, first of all, to consider whether there is a serious issue to be tried and, secondly, and if so, where the balance of convenience lies.  I am entirely satisfied that the claimants have made out more than a serious issue to be tried.  They have demonstrated that they are the registered proprietors, and entitled to possession, of the various parcels of land identified in the extended Particulars of Claim.  No one is entitled to enter upon that land without their consent otherwise than pursuant to some enforceable right of property, or pursuant to some public right of way (of which there is presently no evidence before the court).

12.	I am satisfied that the claimants have made out a serious issue to be tried.  I am satisfied that damages would not be an adequate remedy for any of the claimants if there were to be trespass upon the claimants’ land in connection with anti-fracking, environmental, or similar protests or events.  Damages would not be an adequate remedy because of the difficulty of identifying those trespassing upon the claimants’ land, and the difficulties of establishing the extent, in money terms, of any damages.  This is farmland, and it would be difficult, on the evidence before me, to quantify any damage in money terms, and there would also be the difficulty of enforcing any award of damages in any event.  

13.	I am conscious of the fact that an injunction is effectively sought against all of the world, to prevent anyone from entering or remaining on the claimants’ land in connection with anti-fracking, environmental, or similar protests or events.  Mr Roscoe relies upon the case of Hampshire Waste Services Limited v Intending Trespassers upon Chineham Incinerator Site [2003] EWHC 1738 (Ch), reported at [2004] Environmental Law Reports 9, as authority for the proposition that the court may grant an interim injunction against persons identified only by a description.  The description that was sanctioned by the Vice-Chancellor, Sir Andrew Morritt, in that case was the description: 

“… persons entering or remaining without consent of the claimants, or any of them, on any of six identified incinerator sites ....”  

That authority is distinguishable from the present case in that the Vice-Chancellor was dealing with a proposed trespass associated with an imminent global day of action against incinerators which, it was envisaged, would take place on or around a specific, and identifiable, date in July 2003.  Here, what is sought is an injunction, apparently on a basis unlimited in point of time.  It may be that the propriety of granting such an injunction will have to be considered at the return date.  I have myself earlier this year in a case, United Utilities Water Plc v Persons Unknown, decided on 20 June 2014, granted an interim injunction, pending trial or further order, which in that case was limited to a maximum duration of six months.  The propriety of granting an injunction unlimited in point of time will fall to be considered on the return date.  What I am satisfied of is that I have jurisdiction to grant an interim injunction against threatened acts of trespass over until a return day of the full hearing of this possession claim.

14.	I am satisfied on the evidence that it is appropriate to exercise that jurisdiction in favour of granting injunctive relief in the terms I have indicated.  Mr Roscoe had originally sought to include a further prohibition against instructing or encouraging any third party from trespassing on the claimants’ land.  I indicated that I was troubled by granting an interim injunction in those terms having regard to the Convention rights protected by Article 10 (Freedom of Expression) and Article 11 (Freedom of Assembly and Association) in the European Convention.  Mr Roscoe recognised my concerns and indicated that he would not press for the inclusion of an injunction against instructing or encouraging what, effectively, would be acts of trespass.  My concern was that an injunction in those terms was so loosely worded as to be of potentially wide-ranging effect, giving rise to potential concerns about whether posting messages on social media sites drawing attention to fracking activities or planning applications on, or in relation to, the land subject to the injunction might, of itself, amount to an infringement of any injunction against instructing or encouraging other persons to enter or remain upon the land.  As I say, Mr Roscoe did not press for that, and therefore the injunction will simply be directed to forbidding people from entering or remaining upon, or obstructing, impeding or otherwise interfering with the activities of the claimants, their employees, agents, contractors or licensees on, any of the relevant parcels of land in connection with anti-fracking, environmental, or similar protests or events.  The effect of that injunction would be that if anyone does enter upon the land, or remain upon it, they will be in breach of the injunction, and potentially liable to proceedings for contempt of court, which may include committal to prison.  I am hopeful that the departure of protestors, or campaigners, from the land in the face of today’s hearing indicates that those persons will bear in mind the potential consequences they may suffer if they infringe the terms of this injunction, which will continue until the return date.

15.	Mr Roscoe also sought declarations as to the relevant claimants’ entitlement to possession of the various parcels of land of which they were the registered proprietors.  His justification for seeking such declarations was founded upon observations of Lord Neuberger at paragraph 93 of his judgment in the case of Secretary of State for the Environment, Food & Rural Affairs v Meier [2009] UKSC 11, reported at [2009] 1 WLR 2780.  There, Lord Neuberger had observed that where, after the grant of an injunction, or indeed a declaration, a defendant entered on to the land in question, it was conceivable that a claimant could apply for a writ of restitution ordering the sheriff, or bailiffs, to recover possession of the land for the claimant’s benefit.  Such a writ would be in aid of a writ of possession.  I pointed out to Mr Roscoe that, unlike the case before Lord Neuberger, the only claimants of land in relation to which a possession order was to be made by the court were the first and second claimants.  I pointed out that they were not the owners of any other of the relevant parcels of land, and, in those circumstances, it seemed to me that there might well be difficulties in relying upon a declaration as to entitlement to possession of other parcels of land made in favour of other claimants than those whose land was the subject of a possession order.  Mr Roscoe accepted that there was that potential ground of distinction; and, in those circumstances, he did not press for the grant of declaratory relief, other than in relation to the first and second claimants and their land, at least at this present hearing.

16.	I am satisfied that there should be a declaration as to the claimants’ entitlement to possession of their land within title number LAN679804; but at the present time I am not prepared to grant any more extensive declaratory relief.  Mr Roscoe has proposed provisions as to the service of this order, subject to widening the scope of the advertisement of the existence of this order from a local to a national newspaper.  I am content with his proposed directions as to service.  Any person affected by the order, including the only named defendant, Ms Rothery, will be entitled to apply to the court at any time to vary or discharge the order, but they must give notice of at least 48 hours to the claimants’ solicitors.  There will be a direction for the named defendant, Ms Rothery, and any other person affected by this order, to file and serve any evidence in answer to the claimants’ evidence by 4pm on 18 September, 21 days from today.  The claimants will then have 14 days, until 4pm on 2 October, to file and serve any evidence in response.  This matter will come back before this court on 8 October, and will be reserved to me, since I have already undertaken a great deal of pre-reading in this matter and am fully seised of the case.  I will estimate the length of hearing as one day, although I am hopeful that the case will not take that long.  

17.	Those are my reasons for making an order in the terms that I do.  In substance, there will be a possession order in relation to the land which was occupied, but which I am told is no longer occupied by protestors, or campaigners.  There will be an injunction against going on to any of the claimants’ land, whether the site of the recent occupation or any other of their land identified in the proceedings and the order, in connection with any anti-fracking, environmental, or similar protests or events; and there will be the declaration as to the claimants’ entitlement to possession of the land which was the subject of the occupation.  There will be those case management directions; and the case will come back before me in Manchester on 8 October.