An injunction brought by INEOS against anti-fracking protesters will be contested at a three-day hearing at the High Court later this year.
A judge renewed the temporary injunction today, making minor changes to the wording.
It has been challenged by two opponents of fracking, the environmental activist and fashion entrepreneur, Joe Corre, and a long-term protester, Joe Boyd.
INEOS had claimed there was an imminent threat to its sites, staff and contractors, although it does not yet have any planning permissions for shale gas exploration. It sought to prevent protests that interfered with its activities or those of companies in its supply chain.
The injunction, first issued against “persons unknown” in July, just before the court summer holiday, covers potential INEOS shale gas sites, routes to them and neighbouring land, as well as offices, depots and operations across the country.
Breaching the injunction could result in imprisonment, fines or the seizure of assets.
The legal teams for Mr Corre and Mr Boyd sought to quash the order today, arguing that the injunction was premature, draconian and unlawfully breached the human rights of protesters.
But Mr Justice Morgan said:
“I am leaving everything open for argument.
“Nevertheless, I am persuaded to continue the protection [of the injunction] until the matter comes back for a thorough examination.
“The rights of protests in a democratic society need to be conserved with care. I welcome the examination of the evidence of the impacts of the order on a citizen’s right to protect on a matter of wide public interest.”
Mr Justice Morgan said his decision had been based on evidence largely from INEOS, made up of more than 4,000 pages of documents and more than six hours of video. He had made the original ruling at the July hearing, which had not been open to press or public.
Stephen Simblett, for Mr Corre, and Heather Williams QC, for Mr Boyd, said the injunction was premature because INEOS did not have any shale gas operations and there was no evidence of a threat.
But Mr Justice Morgan said:
“I am not persuaded to take that view. The burden is on the claimants to persuade me that the court should intervene and I am persuaded that the test is satisfied.”
“Lurid and exaggerated evidence”
The legal teams of both challengers accused of INEOS of overstating the evidence in support of an injunction.
Stephen Simblett said:
“What is being said is far more lurid and exaggerated than is the true picture”.
Heather Williams said:
“It should be a matter of considerable concern that a party might come before this court with these hyperbolic statements that are not born out by the evidence.”
She said INEOS had made an “unwarranted leap” in assuming that protests against shale gas exploration by Cuadrilla in Lancashire would also happen at its sites. She said INEOS had not reached the same stage in the process as Cuadrilla.
“No intention to stifle protest”
Janet Bignell QC, for INEOS, told the court:
“ It is not part of our intention to stifle lawful protest.”
She said it was not a matter of if but when there would be protests against INEOS operations and those of its suppliers
She said protesters against the drilling equipment firm, PR Marriott, which has been supplying Cuadrilla, had also shouted INEOS’s name.
But Ms Williams, for Mr Boyd, said there was a lack of any “hard evidence” of the threat of unlawful activity directed at INEOS. Nor was there evidence of an escalation or planning of protest against the company.
She said an example given by INEOS of car tracks in a field could have been teenage joy riders. An incident cited by the company where two dog walkers shouted at one of the company’s workers did not constitute a threat, she said. Comments on social media were “no more than insults”, rather than threats as INEOS had claimed.
Ms Williams added that the injunction was having a chilling effect on protest and could inadvertently criminalise protesters. It would have an impact on freedoms of speech and assembly, set out in articles 10 and 11 of the European Convention on human rights.
“We submit that a central concern of the injunction as currently formulated is that it does impact on the lawful Article 10 and 11 rights.”
Mr Simblett, for Mr Corre, described the injunction as misconstrued and likely to deter entirely legitimate and peaceful protest.
“The claimants have to be able to satisfy you that this order justifies the draconian and wide-ranging restrictions, which spread from West Sussex to North Yorkshire.”
He criticised the company for not naming any people against whom the injunction was intended and accused it of “pursuing thin air”.
“They have not one defendant.
“They might as well have sued the bogeyman or bad people.
“If there is no defendant there cannot be a remedy.
“There is no one to sue because nothing has happened and if there is no one to sue you cannot bring a claim.”
The court heard that people who asked for the terms of the injunction were warned by INEOS solicitors that they risked being liable for the company’s costs.
It was, Mr Simblett said, a “a deliberate and considered” attempt by INEOS to deter campaigners from challenging the injunction.
“That is part of the oppression here. They are seeking to avoid people coming to court to resist the terms of the injunction.”
He said INEOS had sought special permission from the court to serve the order by sending messages to web sites and putting notices at sites.
“[The injunction] depends on them committing environmental offences of flying posting to publicise the order.”
Mr Simblett said:
“This sort of order has a momentum of its own and that is something that should not be given support.
“The claimant [INEOS] has had months and months and huge resources to build a case. The fact that they cannot build a case shows there is no case.”
Ban on slow walking
The judge agreed to modify the wording of small sections of the order. A key change concerned a reference to slow walk protests, which were specifically outlawed in the injunction. These protests are increasingly common near oil and gas sites, where campaigners seek to delay the activities of a company by walking slowly in front of delivery lorries.
The challengers had argued that if the order were renewed it would be unreasonable for it to prohibit all slow walking down a road.
The judge added the words “unreasonable” and “without lawful excuse or authority”.
After the hearing, neither Mr Corre or Mr Boyd were surprised that Mr Justice Morgan had refused to quash the order he made in July.
Mr Boyd said: “We will need some strong arguments on the return”.
Mr Corre said:
“They [INEOS] came here to get their injunction finalised
“The judge amended his order significantly
“It’s a part victory on the way to ultimate victory. We have to keep that in mind. It is a war of attrition.”
Tom Pickering, Operations Director of INEOS Shale, said in a statement this evening:
“It is our duty to do all we can to ensure the safety of everyone on and around our sites including the protesters themselves. We are also clear that our people and suppliers have the right to come to work free from harassment and intimidation.”
The case is expected to return to the High Court in November.
Reporting on this meeting was made possible by the individual donations of DrillOrDrop readers
Updated 13/9/2017 to correct the caption to the view from Bramleymoor Lane (changing Cuadrilla for INEOS) and to insert a missing comma and a missing “to”.