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

170703 pnr Gina Dowding Kirsten Buss for Reclaim the POwer

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

171106 pnr FFL1

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. It would be interesting to see this pursued further. Whether injunctions, for example, against Cuadrilla breaking further planning conditions or breeching environmental permits, could be satisfactorily pursued through a court of law. I suspect that if the anti-fracking fraternity and sonority had the wherewithall, ie the money, to employ further legal action this could also easily persuade a judge of the rightness of a legal argument.

    As it stands the judiciary, by a statement that ““I consider that such an order could have undesirable consequences which the court would wish to avoid.” attempts to stand aloof. They should know they can’t do that. They should know action against fracking will continue whatever theor judgements.

    This isn’t about the fckin court and its worry they’ll be hassled.

    The PEOPLE are hassled. By the frackers, by the police, and now by frackers who ask for police and court protection. It won’t work. At any level.

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

      There is an imminent and real risk that, in the absence of enforcement of the Human Rights Act, the Claimants will interfere with the legal rights of the Defendants.

    • Thankyou Ruth, what an interesting day in a British Court Of Law?

      Perhaps we see here that the law is only effective on legal matters, it seems any other consideration remains outside of that remit. It is not a forum for common sense or objective facts, no matter how closely held.

      A number of far reaching fundamental democratic lines have been crossed, and today those lines were made semi permanent, it is now a matter of what we can do about it.

      I think we have been not just invaded, but the invaders are now in control of the very processes of democracy we erroneously thought were in place to protected us.

      A wake up call no less.

      We shall see.

      • I think Phil, that all of this is now showing up the reality of our so called state. Never was it designed to give rights to the majority, only those in the ‘power halls’…

        Our present system was set up by good ol’e Bill the Conq and has been tweeked to give the illusion that at last in the 21st Century you have rights. Not so. It is the business entity that has all the rights. This ruling clearly shows that the HRA is not worth the paper and blood spilled to achieve its presence.

        So the answer? It’s time to change the law. This must be done by responsible citizens taking up responsibility, getting involved in the law making process and politics and no longer leaving it to the few; some of which only have a selfish agenda. We need to support those politicians who are interested in their constituents rights, morally, not just their votes come election time.

        I am thankful in so many ways that the fracking industry knocked on my door. It has shown up the huge fracks in our system and its time to make things better for the many, not the few. I believe this will come over time. Whilst this is much bigger than all of us, all of us have a small part to play to make a huge difference. Don’t give up. Get up and act, as actions speak louder than words.

        • Thanks Sherwulfe, yes, you are right, or left, or all ways really, all that nonsense of left and right are just illusionary division tactics anyway.

          And i agree that these events and those that preceded them, have been a wake up call for us all, there are tremendous changes happening around the world as we speak, many of those are all ready affecting every one of us here. There are many more to come.

          As you say, we didn’t ask for any of this, they came knocking without being invited, they had inveigled their way into our midst before we even knew what they were doing or why, now we know, this injunction proves that.

          If they want to come kicking down our doors in order to force their hateful deceitful way into our lives, all that has happened is that we now know those doors were always nothing more than illusory and been nothing but a sick illusion all this time.

          Truth care and compassion for all trumps fear and hatred and aggression any day. This lot have mistakenly revealed the truth about this whole sorry mess of a degenerating control system, we will not forget, we will not forgive, we do not consent, and we do not comply.

          Never show a slave that the walls and bars of their confinement are just fake illusions of the mind and are worth nothing and do not confine anything or anyone if they just step outside of them.

          The present self serving system controllers and their fracking minions (not the little yellow guys!) only have themselves to blame from now on. Law is only worth it if it is good for everyone, not just a self serving slave owning few.

          If we have to change that, we will, even if we have to rewrite every god forsaken book on the legal shelves, and then perhaps we can make the law good for everyone who wants peace and a caring humanitarian society without legal ethical and moral exceptions.

          • Thank you Joe Boyd and Joe Corre for your sterling efforts on our behalf in this court case, it had to be attempted and you were both brave enough to stand up and be counted on this hateful injunction, we will not forget that.

            Can i ask all who read the above report to support Joe Boyd’s costs on this also.

            This is a good day, believe it or not, we now know precisely where we stand, and we know just how far we have been sold down the river by those who stand to gain from all this legalised insanity.

  2. With all of these quotes Ruth has inserted above from the Justice, I am so surprised she would omit one of his key passages:

    “However, on my findings in this judgment, the defendants’ means of putting pressure on Ineos involve unlawful behavior on their part, including criminal acts.”

    I thought that Ruth wrote balanced and fair pieces. Oh, how I have been misled!

  3. I fail to see what the Judge has actually done. He says nothing that isn’t already in place.

    Obviously if you are on private land it becomes trespass and a civil case. In any case you can claim compensation if you can prove loss.
    You don’t need an injunction to do that. It would however cost a lot of time and effort to substantiate and quantify that loss.

    What has he actually put in place that alters the legal position of actions taken on public land?

    What will police now be doing that is different?

    The Judge steers clear of connecting himself with harassment issues.

    Slow walking on public land is a police matter and for them to define reasonable and proportionate.

    If a group of pensioners slow walk a lorry on a highway I fail to see how the industry would gain from trying to quantify the loss to the company and trying to claim the cost of that loss from a group of pensioners.

    I wonder if we will see peaceful protesters making citizens arrests if they are assaulted or threatened?

  4. Contempt of Court is the answer to your question, John. Check it out. The other answer to your question is that, having achieved the injunction, Ineos will (I suspect) make sure it is enforced.

    It is a different game now. Adapt or disappear-wonder what option the antis will take.

    • Oh it will be adapt Martin – the playing field has never been level. We are all quite used to it by now. Nobody is going anywhere until your friends go home to Switzerland, Australia, Hong Kong, China, the Cayman island etc etc etc.

    • Well well, what a display?
      Now we see how the triple A TPG’s love to wave their new injunksham shiny toy around to threaten and intimidated everyone in this invaded country?

      What a joke! Honestly, give these puffed up TPG’s a little power over others and they end up marching in frackstep down the peaceful leafy lanes of England nailing their totalitarian manifestos to peoples doors.

      What next? Concentration camps and compulsory green armbands and 666 bar code tattoos for protectors of the earth?

      What this indicates is gross arrogant contempt for the entire country if not the entire planet and a trumped up attempt to forcefully jam fracking down our throats and then threaten us just for standing up and saying “No”.

      The answer is still ‘No” That will never change, get used to it.

      • The next stage is to organise and discuss counter measures, whatever peaceful form that may take.
        There are millions of us, it is time to stand up for ourselves and wrest freedom back from the corporate invaders.
        Everyone in this country who wish to preserve freedom and democracy needs to be involved, we are the people with the real power in this country, not a tiny bunch of jumped up fascist dictators.

  5. The anti fracking movement started with a few people discussing round a table. Now there are thousands meeting regularly around the country. There are top legal teams and the best environmental consultants and specialists working with local communities to oppose the industry. No gas after nearly 8 years of trying.

    Anti fracking is big business.

    Everything the industry has done so far has produced even more resistance

    This attempt by Ineos to subdue the opposition to their plans will backfire and cause them yet more problems.

    Applying to the courts to try and prove contempt from large numbers of peaceful demonstrators would bring even more bad PR and open up all sorts of counter legal actions all of which would produce even more resistance.

    The Scottish ban on shale has significantly altered the shale Industries future.

    Ineos have just announced they are moving more into North sea exploration and production and will be taking advantage of the recent tax breaks. As cheap North sea gas production rises and cheap renewables expand the future for shale is growing ever weaker.

    Time is nearly up for UK shale

    • I doubt this will end here because this decision goes beyond fracking. This will not end opposition of fracking either as the British don’t like bullies and the reasons for opposing the industry remain unchanged.
      I think we should just ask Mr Tom Pickering to read out in Public the list of harms the chemicals cause and that are associated with the extraction of shale gas, as he did in court. Then the good people of England can further question why this industry with its impact on the environment, humans and climate change remains lawful in England.

  6. Hi John, yes, its the last dying breath of this pernicious industry, but like all monsters, it just will not lye down, though lying does seem to be a speciality?

    It occurs to me that this whole episode is about protest, that has been to sole focus of all the arguments, and yet protest is not the issue is it? Protest and protection are a result of this invading hateful industry, not the cause, we did not ask for any of this, it was foisted upon us out the blue….literally! By this government via back door brown paper envelope lobbying, none of this has come from the people of this country.

    So, the real enemy mine resides in Westminster and in the corporation boardrooms, not out on the streets and outside the invaders footholds in our countryside.

    The attention should be there, that is perhaps one of the smoke screens that this entire injunction debacle has presented.

    What ever happens, the issue is central government, local government are either willing or unwilling pawns, and the corporations themselves, that is where the rot lies and that is what needs to be concentrated on.

    Yes look at further ways to stop this injunction, but the real target sits in business suits in business suites behind corporate and government locked doors trying to wave mirrors and smoke screens to divert attention away from them.

    That is the purpose now, to examine these shaky movers with a fine tooth comb and see what fleas pop out.

    [Typo corrected at poster’s request]

  7. Keep up John! “Ineos have just announced”!!!

    Ineos have been investing in a lot of areas for a considerable time, including the N.Sea, which have been “announced” as they have happened. (Ding Dong!)

    They invest where they see opportunities. One investment does not mean that other investments are to be pulled. The only persons being fooled by such statements will be fooled but the majority, who bother to research, will see such statements as being very poorly researched and you will achieve the reverse response you expect. Keep on with the good work..

  8. We should not be surprised, the Tory government wants fracking to happen, most Tory MP’s [edited by moderator] haven’t a clue what it’s like to live in the ‘real world’, judges are cut from the same cloth.

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