National Highways secures one-year extension to injunction against protesters blocking roads

The High Court has given a one-year extension to injunctions secured by National Highways (NH) against disruptive climate protesters who have blocked roads.

Myriam Stacey KC and Michael Fry, of Landmark Chambers, who acted for NH, said the injunction applied to the M25, its feeder roads and major roads in Kent.

Mr Justice Cotter had been asked to impose the injunction on both ‘persons unknown’ and 140 named defendants.

He removed though some who had shown they were not at the protest concerned and those who gave an undertaking not to repeat their conduct.

The original injunction was imposed for a year in May 2022 by Mr Justice Bennathan and amended by the Court of Appeal in March 2023 after Insulate Britain (IB) protesters had repeatedly blocked the M25 and some other roads.

When earlier injunctions were issued “the leaders/co-ordinators of IB made it publicly known that they did not intend to be prevented from taking what they considered necessary action by the orders of the court,” Cotter J said in his judgment.

“In so doing they notified anyone who read their statements (or associated media/social media coverage) of the existence of the prohibition against demonstrations of the type which had taken place.”

He was asked to decide whether to extend the injunction, whether the court should permit alternative service, if court should continue the associated third party disclosure order and on costs.

Cotter J said although there has been no direct action on the strategic road network since November 2022, NH “submitted that there was a compelling case for the injunction order to be continued [as] there have been a number of broader incidents of direct action protests which have been designed to cause disruption on other roads and bridges in central London”.

Protesters argued they had been threatened by NH with “extortionate cost applications” and that roads were a legitimate site for peaceful protest and assembly.

Cotter J said: “I recognise that the defendants passionately believe that there is a climate crisis and the that the Government is failing to adequately address it.

"However the Government in this country is democratically elected to govern, Judges are not. It is the role of the courts to be independent and impartial and apply the laws as enacted.”

He said though it wold be wrong - a year after the original injunction - to “treat the defendants as a homogeneous group”.

The court would therefore offer the opportunity to defendants to provide a suitable undertaking; though he warned them that breaching an undertaking “potentially leads to the same penalties as if an order were broken; a person may be held in contempt and may be imprisoned, fined or have their assets seized.

“It is a serious step not to be taken lightly or without careful consideration. However if such an undertaking is accepted in circumstances such as the present by the court then a person may be released from being a defendant going forwards.”

Cotter J said the injunction should be extended for a year against those unprepared to give an undertaking, with a review in the month before it expires.

The judge added that it was ‘very unlikely, perhaps vanishingly unlikely”, that anyone minded to protest on the strategic roads network could be “unaware that injunctive relief has been granted by the courts”.

On costs he noted NH claimed £727,573.84 and “in my judgment it would be wrong in principle not to order that the 109 defendants pay the costs of action up to and including the hearings before Bennathan J”.

In earlier proceedings an order had been made by Mr Justice Lavender “at the request of the police” that a number of chief constables disclose the names and address of protestors removed from the M25 to NH.

Cotter J said: “This aspect of the order (which has been sought in other cases) has recently caused concern amongst some High Court judges given the nature and extent of the obligation imposed on third party in respect of future confidential information/ data concerning people who have been arrested, but not necessarily charged with any offence (and the fact that a person who is arrested is not afforded the right to challenge the provision of the information to the claimant before it is provided).”

He said though the matter had not had detailed consideration by any judge and he was “not prepared to continue this aspect of the order in the longer term without understanding the basis upon which it is said the court has, and should use, any power to make such an order”.

Mark Smulian