In a significant recent case for the industrial and logistics sector, the High Court has once again granted an injunction against persons unknown, this time to stop unlawful interference with the operations and roads to oil terminals and refineries across the country. Valero Energy Ltd and others v Persons Unknown is the latest case in the developing area of so called 'newcomer injunctions'.
What is a newcomer injunction?
It is well established that the English courts have the power to grant injunction orders against persons unknown. Injunctions against persons unknown have typically been granted against trespassers and protestors, often in favour of substantial landowners and others with property rights that are likely to be infringed.
A newcomer injunction goes further than an injunction granted against persons unknown, and is designed to include anyone else in the future who falls within the description of 'persons unknown', including those who cannot be identified in advance. The Supreme Court has recently described newcomer injunctions as a "wholly new form" of injunction, which are "a valuable and proportionate remedy" in appropriate cases.
Valero Energy Ltd
The Claimants (Valero) were three petrochemical companies forming part of the Valero Group. The Defendants were described in the judgment as persons unknown associated with environmental protest organisations, such as Extinction Rebellion and Just Stop Oil, who interfere with the operations of and roads to oil terminals and refineries across the country owned by Valero.
After ongoing public threats and protests from the Defendants and based on police intelligence, Valero had previously obtained interim injunctions against the Defendants. In December 2023 Valero applied for summary judgment on its claim against the Defendants, and a quasi-final injunction for five years.
The High Court's Findings
The Court reviewed the evidence and the guidelines recently laid down by the previous court rulings, and concluded that in summary judgment applications for a final injunction against unknown persons or newcomers who are protesters of some sort, a number of guidelines must be met. This was because a final injunction against persons unknown is a "nuclear option" in civil law ''akin to a temporary piece of legislation affecting all citizens of England and Wales for the future". In summary, the substantive guidelines and rules are:
- There must be a civil cause of action identified in the claimant's claim documents
- The claimant must provide full and frank disclosure of all material facts
- The court must have sufficient and detailed evidence to justify finding that the immediate fear is proven
- The defendant must be found unable to raise a defence to the claim which has a realistic prospect of success
- There must be a "compelling justification" for the injunction against persons unknown, in order to protect a claimant's civil rights
- The injunction must be necessary and proportionate to the need to protect the claimant's rights
- Financial damages would not be an adequate remedy
Having reviewed the facts and the evidence presented by Valero, the Court concluded that all of the above requirements were met and granted the quasi-final injunction sought, for five years and subject to annual reviews.
As with injunctions against persons unknown, newcomer injunctions are growing in significance. The possibility of injunctions is liable to arise whenever there is a potential conflict between private or public rights and the future behaviour of individuals who cannot be identified in advance. The Supreme Court has noted that the availability of injunctions against newcomers has become an increasingly important issue in many contexts, including industrial picketing, environmental and other protests, breaches of confidence, breaches of intellectual property rights, and a wide variety of unlawful activities related to social media. Many of these types of issues arise in the industrials and logistics sectors, and we envisage newcomer injunctions becoming much more prominent for anyone operating in those areas.
