Legal

What the judge said in his ruling on INEOS fracking protest injunction

yorks-rose

A High Court judge ruled this morning that an interim injunction sought by INEOS against anti-fracking protesters should continue. See DrillOrDrop breaking news.

The ruling, handed down by Mr Justice Morgan, extended most of the previous orders made to the claimants, INEOS and six landowners, in July and extended in September 2017.

But in response to a challenge earlier this month by two campaigners, Joe Boyd and Joe Corre, the judge removed a previous order against harassment and made changes to the wording of other sections.

The interim injunction applies to unnamed people (the defendants) and can now remain in force indefinitely unless there is an appeal against today’s ruling. There would need to be a trial for the order to be made permanent.

Mr Justice Morgan concluded:

“INEOS’s business activities are lawful. The [campaigners] wish INEOS to stop carrying on those activities and wish to put pressure on INEOS to stop. However, on my findings in this judgment, the [campaigners’] means of putting pressure on INEOS involve unlawful behaviour on their part, including criminal acts”

He said:

“There is an imminent and real risk that, in the absence of injunctions, the Defendants will interfere with the legal rights of the Claimants.

“In the absence of injunctions, it is unlikely that the Claimants will receive any legal redress or compensation for the infringement of their rights.”

His ruling prevented the following activities:

  • Trespass on the claimants’ land
  • Interference with the activities of INEOS and its contractors
  • Unlawful and unreasonable obstruction of the highway by actions including slow walking, climbing on vehicles and lock-on protests or a combination of them.

Mr Justice Morgan rejected arguments by the legal teams for Mr Boyd and Mr Corre that the injunction was unnecessary and that INEOS had misled the court at a private hearing when the order was first granted.

He also dismissed the claim that the injunction would complicate the position of the police.

pnr 170811 protest update rag

Protest at Cuadrilla’s Preston New Road Site. Photo: Roseacre Awareness Group

The judge’s ruling in detail

“Real threat” to INEOS

INEOS had argued that it faced a “real threat” of interference from protests. The challengers said INEOS had not provided any evidence to support its case.

Mr Justice Morgan said today:

“I consider that the evidence makes it plain that (in the absence of injunctions) the protestors will seek to [subject INEOS to direct action protests]”.

“There is no reason to think that [without injunctions] INEOS will be treated any differently in the future from the way in which the other fracking operators have been treated in the past. I therefore consider that the risk of the infringement of INEOS’ rights is real.

“I consider that the risk of trespass on INEOS’ land by protestors is sufficiently imminent to justify appropriate intervention by the court.”

He said there was also a real risk of: interference with equipment and private rights of way and the threat of action to prevent claimants and contractors leaving the identified sites in the injunction.

Mr Justice Morgan said the injunction should apply to INEOS contractors, specifically mentioning the services company P R Marriott.

Without an injunction, he said:

“There is a continuing risk of obstruction of the highway outside P R Marriott’s depot and when the contractor is engaged to provide services to INEOS, those obstructions will harm INEOS.”

Imminent threat

INEOS injunction

INEOS injunction in South Yorkshire

The challengers said INEOS had misled the court by claiming that the threat was also imminent.

Mr Justice Morgan said today:

“I do not consider that INEOS should be told to wait until it suffers harm from unlawful actions and then react at that time.”

He said this particularly applied to trespass and the establishment of protest camps.

“A clear injunction would allow the protestors to know what is permitted and what is not”.

Defending the order he granted in July, he said:

“The evidence did show that it was possible for protestors to trespass on land and set up protest camps on short notice.”

Obstruction of the highway

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Lock-on protest at Preston New Road. Photo: Kristian Buus for Reclaim the Power

Obstructing the highway, particularly by slow walking protest, was a key issue at the hearing earlier this month at which the injunction was challenged.

Mr Justice Morgan said today the wording of the order needed to be clearer about what was and was not allowed. He said:

“I will restrain any obstruction which prevents the Claimants accessing the highway from any of their Sites with the intention of causing inconvenience and delay.

“I consider that the injunctions should expressly state that walking in front of vehicles with the object of slowing them down and with the intention of causing inconvenience and delay is not permitted.”

He also prohibited “blocking the highway with persons or things with a view to slowing down or stopping traffic” and climbing onto vehicles.

He said his ruling applied to INEOS and its contractors but he said contractors should be named in the injunction order.

Harassment

INEOS had sought to include harassment in the injunction. The challengers had argued that the company had not stated clearly enough what this meant.

The Judge agreed:

“I do not favour the grant of an injunction against harassment largely because of the lack of clarity of that term.”

He said:

“There are likely to be strongly expressed objections to fracking. The expression of those objections may lead to the making of abusive and insulting comments about INEOS (and indeed about the individual Claimants who have made their land available to INEOS) where there might be real difficulty in knowing whether the conduct amounts of harassment.

“I do not consider that the Claimants have demonstrated a need for the court to make an order against harassment.

“I consider that such an order could have undesirable consequences which the court would wish to avoid.”

He did, however, give INEOS permission to apply in future for an injunction against harassment.

Criminal versus civil law

Opponents of the injunction had argued that the civil courts should leave it to the criminal law and police to deal with any criminal behaviour.

The judge disagreed:

“The detection and prosecution of alleged criminal offenders is generally left to public authorities but there is no reason for a civil court to deny to a claimant the advantages which ought to flow from the grant to it of an injunction.”

The role of the police

171005 KM North Yorkshire Police

Slow walk near Third Energy’s fracking site at Kirby Misperton in North Yorkshire, 5 October 2017. Photo: North Yorkshire Police

The challengers of the injunction had argued that it would complicate the positon of the police and would allow INEOS to tell the police what to do, possibly against the wishes of officers.

The judge said in his ruling:

“I do not see how that would be so. If the injunctions are complied with then the result ought to be that there would be less need for the police to be involved. If the injunctions are not complied with and the police are involved then they will be free to form their own decisions as to the appropriate response to the situation as they find it.”

Public footpaths

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Injunction warning on footpath at Woodsetts. Photo: DrillOrDrop

INEOS’ proposed shale gas sites at Harthill and Woodsetts in South Yorkshire are bounded by footpaths. INEOS said the injunction did not seek to prevent a member of the public using those footpaths. But the challengers provided evidence that people were dissuaded from doing so because they feared they would inadvertently breach the injunction.

The judge did not outlaw the use of footpaths for protesting against fracking.

“If members of the public wish to use the footpath to protest against fracking but without otherwise trespassing on sites 2 (Harthill) and 7 (Woodsetts( then it remains to be seen whether there will be any complaint about such protests.”

Allegations that the court was misled

The challengers of the injunction accused INEOS of misleading the court at the original private hearing. They said there had been “several grave breaches” of the legal duty of candour and for this reason alone the injunction should be dismissed.

They said the judge had been misled because INEOS had relied on unrepresentative material and summaries. There was no “genuine urgency”, they said, and the company did not make it clear that the vast majority of anti-fracking protests were peaceful and lawful.

The challengers said INEOS Shale’s Operations Director, Tom Pickering, had overstated the extent to which there was a consensus that fracking was safe. The company was also criticised for not telling the court about safety failings at INEOS sites, falsely stating that the police supported the injunction and not explaining the likely effect of fracking on rural communities.

Mr Justice Morgan responded today:

“My overall assessment is that the court was not misled.

“I am not persuaded that the Claimants did break their duty of candour to the court.”

He said it was not appropriate for the court to “engage with the underlying disputes of fact”. He added:

“The court must preserve a sense of proportion in reacting to a complaint that it was misled. It must not allow the argument to descend into such a degree of detail and it is in danger of not being able to see the wood for the trees.”

Misled on law

When applying for the injunction, INEOS’ solicitors said there were no issues under the Human Rights Act.

The challengers said the judge had been misled and argued that the injunction breached the rights to freedom of expression and association under Articles 10 and 11 of the European Convention on Human Rights.

In his ruling, Mr Justice Morgan said:

“I consider that it is not open to the Defendants to rely on Articles 10 and 11 in an attempt to justify direct action for the purpose of harming the Claimants with a view to forcing them to give up their lawful business.

“I consider that I was not misled as to the basic principles as to Articles 10 and 11 b reason of ay breach by the Claimants of their duty of candour.”

Fracking and lawful protest

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Sit down protest at Preston New Road. Photo: Frack Free Lancashire

The judge said he didn’t “necessarily agree” with INEOS that the threatened protests were unlawful. “That question remains to be examined”, he said.

He said:

“I recognise that the grant of an interim injunction is likely to have a significant effect on some of the methods the Defendants wish to use in order to protest against INEOS’ intended fracking operations. I cannot predict whether this case will ever go to trial.”

He added that the court did not form a view a about whether fracking was in the public interest.

Clarity and precision

The judge said

“It is important in this case that nay injunction must be expressed in clear and precise terms. He suggested changes to the wording of sections of the order.”

DrillOrDrop will report on the new injunction order when it is published.


 

Reporting on the INEOS injunction ruling was made possible by donations from individual DrilllOrDrop readers

38 replies »

  1. “There are top legal teams”……!!!!!
    Their success rates to date would indicate they are far from that, or they are being put into bat where there is no legal case to win. One of the two, the third dimension is a fun diversion.

    • What is being missed here is very significant; that INEOS feel the need to take this action. Clearly the protests are making a real impact. It’s about time the governance of this country take note of this. As many have said, the resistance is growing and will grow exponentially. It’s time for a moratorium, no excuses.

  2. Fascinating Corbett Report on “Data is the New Oil” Documentary, this is really worth watching the whole way through, particularly the InPower movement which has particular relevance to the fracking corporations and the ineos injunction.

    Watch and learn, there are many ways to look at this whole false illusion that we are helpless slaves against these evil invaders.

    its all smoke a mirrors, we can fight this right in their place of business on their own ground.

  3. What is being totally ignored by all the antis Sherwulfe (quite illuminating) and nearly ignored by DOD, are the judge’s remarks about unlawful behaviour and criminal acts. Equally, no concern about incitement to violence against Ineos staff. Is that success to you?

    The moral high-ground has a slippery slope to it and the lack of any posts from the antis condemning such, shows how extreme this has become and how divorced from mainstream views and values. There’s a swamp at the bottom of that slippery slope.

    • The only one who is ‘divorced from mainstream views and values’, Martin, is you I’m afraid as you demonstrate post after post.

      It’s a shame you do not read well. What I said was ‘Clearly the protests are making a real impact.’ There was no cry of success; this will only come when the residents are listened to with respect. This government has failed to listen to the concerns of the many around the country. It has resulted in mainly peaceful protest and for some more extreme action; this demonstrates, literally, the importance placed on the opposition of shale gas extraction to the groups and individuals involved.

      Injunctions will not stop protest. A moratorium would at least begin a process of challenge to the apparent ignorance of those who pertain to be ‘in charge’ of the decision making process regarding shale gas extraction; surely you would welcome a chance to also put forward your case?

      • Hi Sherwulfe, i’m afraid its the industry shiny carboniferous fibre special issue industry black noise “i-SelfCensor” total isolation combined blinkers and ear muffs and comfort blanket?

        Motto: “Hear no truth, See no truth, Say no truth, Think no truth.”except the word “no” is censored too, as is “truth” which just leaves “see, say, think” none of which actually seems to occur due to a faulty world view?

        Never mind, wake up time soon!

  4. Leigh Day + Joe Corre represent the antis and still they can’t see the hypocrisy. Maybe we’re being too kind with the term ‘antis’?

  5. I have already put forward my case-and it was carried.

    The antis have put forward their case subsequently, with increasing anti social behaviour and have lost-repeatedly.

    Of course you can continue to excite protest, and ignore the extremist infiltration and the repercussions, but you have started to find those actions will be challenged and will produce consequences. When you continue to lose it will not stop these tests going ahead. Have you yet embraced what will happen if the tests do prove to be the “non event” that has been predicted? Fabricate an event? Claim it is ignorance that prevents others from agreeing with you that an “event” happened? Dig up a water pipe?

    The confirmation of the injunction is a key event. Not so much because of what it will bring but the way the antis have reacted to it has defined themselves for all to observe. Behind this are many locals who have genuine concerns but all you are doing is removing the platform for them to get their views across about their neighbourhood. Do you really believe the majority of locals want to be carried away into some sort of pseudo political/anti capitalist/class warfare parallel universe?

    Still no condemnation from the slippery slope.

    • Martin,
      Have you yet embraced what will happen if the tests do cause the events that has been predicted? Fabricate an alternative explanation? Claim it is a small technical error that can be regulated or later say it was not you at all?

      Oh hang on, that’s already happened……

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