What is an injunction?
An injunction is an order made by the court prohibiting a person from doing something or requiring a person to do something. In this instance, the injunction granted by the court is prohibitive in nature, meaning that certain persons are prevented from carrying out certain activities.
Injunctions can be temporary, providing a remedy where it is just and convenient to do so until a determination can be reached such as on the lead up to trial (interim injunctions), or final where it is intended that the injunction becomes permanent following the conclusion of proceedings or until a specified point in time.
Injunctions are usually ordered against named defendants, in favour of those with a legal or equitable cause of action, such as trespass or nuisance. However, it can be possible for injunctions to be granted against 鈥榩ersons unknown鈥�, for example, in situations where individuals cannot be identified, yet unlawful conduct is anticipated.
The HS2 injunction
On 20 September 2022, the court granted an interim injunction against several named defendants and 鈥榩ersons unknown鈥� in favour of HS2 Ltd and the Secretary of State for Transport.
The injunction, which is very broad in its application, prohibits a range of unlawful protester activities, including obstructing access to and from HS2 sites, entering upon HS2 land without permission and /or carrying out various acts which impede construction along the route of HS2.
This injunction has been issued in connection with ongoing litigation concerning allegations of trespass and nuisance over HS2 Land; the proceedings have currently been stayed (placed on hold) with no plans for a final hearing unless the court decides otherwise.
Who does the injunction apply to?
There are several named defendants identified within the proceedings, however the injunction is unusually broad in scope and also applies to four categories of 鈥榩ersons unknown鈥� carrying out prohibited activities as set out below to the extent that those activities have the effect of damaging, delaying or hindering HS2 Ltd, their agents, servants, contractors, sub-contractors, group companies, licensees, invitees employees without the consent of HS2 Ltd and/or the Secretary of State for Transport.
The wide application of this injunction means that remedies available to HS2 Ltd, including potential committal proceedings (i.e. proceedings for contempt of court whereby the court may impose a period of imprisonment, a fine or other punishment permitted by law), are enforceable against any individuals whose conduct amounts to a breach of the injunction.
Geographical scope
The injunction applies to all land acquired or held by HS2 Ltd. This land is shown coloured pink and green on the revised plans available electronically on the HS2 proceedings website: .
This could cause practical difficulties because it may be difficult to know on the ground whether certain areas of land are held by HS2 and are therefore caught by the terms of the injunction, for example, where parcels of land are unfenced or work is yet to be commenced at various HS2 sites.
What activities are prohibited by the injunction?
The injunction expressly prohibits persons from entering or remaining upon the HS2 Land without consent, obstructing or interfering with vehicles, equipment or persons accessing or leaving the HS2 Land and /or interfering with any fence or gate on or at the perimeter of the HS2 Land.
Some examples of activities prohibited by the injunction include (but are not limited to) the following:
- standing, kneeling, sitting or lying or otherwise remaining present on the carriageway when any vehicle is attempting to turn into or out of the HS2 Land in a manner which impedes the free passage of the vehicle;
- digging and /or erecting any structure or otherwise placing or leaving any object or thing on the carriageway which may slow or impede the safe and uninterrupted passage of vehicles or persons onto or from the HS2 Land;
- affixing or attaching oneself to the surface of the carriageway where it may slow or impede the safe and uninterrupted passage of vehicles onto or from the HS2 Land;
- affixing any other object to the HS2 Land which may delay or impede the free passage of any vehicle or person to or from the HS2 Land;
- climbing on to or affixing any object or person to any vehicle in the vicinity of the HS2 Land;
- deliberate slow walking in front of vehicles in the vicinity of the HS2 Land; and
- cutting, damaging, moving, climbing on or over, digging beneath, or removing any items affixed to, any temporary or permanent fencing or gates on or at the perimeter of the HS2 Land. This includes drilling or gluing the lock of a gate or any other activities which may prevent the use of gates.
Private and public rights of way
The injunction does not prevent any person from exercising their lawful rights over land, be it over an open public right of way, any public highway, or private rights of access over the HS2 Land, nor does the injunction affect any person with a lawful freehold or leasehold interest in land held temporarily by HS2 Ltd.
Lawful protests
The judgment does not seek to prevent lawful protest, which is expressly not prohibited by the injunction.
Please refer to Activism: guidance on protesting safely for guidance as to what activity amounts to lawful protest.
Can I lawfully protest on HS2 Land?
The injunction expressly states that it 鈥榠s not intended to prohibit lawful protest which does not involve trespass upon the HS2 Land and does not block, slow down, obstruct or otherwise interfere鈥� with HS2 Ltd鈥檚 access to or from the HS2 Land.
Accordingly, protesting on HS2 Land, even if peaceful, would amount to trespass (which is unlawful) and would place you in breach of the injunction.
Key dates
The injunction has been in force since 20 September 2022. The High Court has recently extended the injunction which now applies until 23.59 on 31 May 2024 (and is subject to a yearly review).
Given of the ongoing nature of HS2, it seems likely that HS2 Ltd will seek to extend the injunction beyond 31 May 2024 and are at liberty to apply to the court for this purpose.
Consequences of breach
While the injunction granted is a civil, equitable remedy arising as a result of alleged incidents of trespass and nuisance, there could be criminal ramifications for any person in breach of the injunction.
A failure to comply with the terms of the injunction could amount to contempt of court and potentially result in committal proceedings, including possible imprisonment, a fine or other punishment allowed by law. In such circumstances, any alleged breach of the injunction would need to be proved beyond reasonable doubt (the criminal burden of proof).
Any person affected by the injunction or wishing to become a named defendant has the option of applying to the court to vary or discharge the order.
We strongly recommend that any member contemplating any such action contacts NFU CallFirst on 0370 845 8458 with a view to obtaining their own independent legal advice.
Further support
If you have any concerns surrounding the injunction and how it might impact upon you, you can contact CallFirst on 0370 845 8458 for support.
If you require more detailed independent legal advice in your particular circumstances, then NFU CallFirst can refer you to one of the NFU鈥檚 legal panel firms. NFU Farmer & Grower members receive a 12.5% discount on the hourly rates of the legal panel firms for work relating to their farming businesses.
If you subscribe to the LAS (Legal Assistance Scheme), then you may be eligible for a contribution towards the professional fees. Each case will be assessed on its facts and merits at the discretion of the LAS Team and the Legal Board. For more information about the LAS, and to find out whether you are a subscriber, contact NFU CallFirst on 0370 845 8458 .
Although every effort has been made to ensure accuracy, neither the NFU nor the author can accept liability for errors and or omissions.
See our NFU guidance for members on protesting safely for more information.