An injunction sought by the shale gas company, IGas, represents the “high water mark” of restrictions against protests, a challenger claimed today.
Paul Powlesland, representing the anti-fracking campaigner, Ian Crane, told the High Court in London the injunction combined elements that had not previously been allowed.
He said it included large exclusion zones where protest was prohibited. It covered a range of actions, including trespass and obstructions for which there were already penalties in the criminal law.
It had been agreed at a secret hearing , Mr Powlesland said. And it was being brought against persons unknown, which means anyone could breach the terms of the injunction.
People who breach an injunction could be found in contempt of court and could face two years in prison, fines, seizure of assets and court costs potentially running into tens of thousands of pounds.
Mr Powlesland said:
“This case is the high water mark of what has been allowed for injunctions.
“There are no cases where all these elements have been allowed together.”
Injunctions have already been granted to Cuadrilla in Lancashire, Ineos in the east Midlands and UKOG in southern England.
The injunction brought by IGas covers sites at Misson Springs and Tinker Lane in Nottinghamshire, where the company has planning permission, and Ellesmere Port in Cheshire, where it does not.
The proposed restrictions have been argued this week at a two-and-half day hearing. Another injunction, against protests at Angus Energy sites in Sussex and Surrey, was considered at the same hearing.
Alan Maclean, for both companies, argued that the injunctions should be granted because similar restrictions had been approved by the judge in the Ineos case.
But completing his case against the injunctions today, Mr Powlesland said:
“I submit that these cases are so fact-sensitive that you are not required to follow Ineos. I would ask you to consider these cases on their own facts, bearing in mind other decisions and following precedent where you have to.”
Mr Powlesland argued that the injunction should not be brought against persons unknown.
“When we seek to proscribe protests for the world at large it becomes very difficult. There is no one here to speak for the wider community. This amounts to a major injustice because the world at large is not represented here to say how they wish to protest.”
On the Ellesmere Port site, Mr Powlesland said people may not know about the injunction because nothing was happening at the site and there was no reason to protest. But if planning permission were granted, people may wish to protest and may, unwittingly breach the injunction.
He also criticised the companies for seeking to outlaw actions through the civil courts that were already dealt with by criminal courts.
“The magistrates court is the right place for fracking companies to seek a remedy from protest actions.”
Mr Powlesland also argued that costs levied against people in contempt of court cases had become a deterrent against protest.
“Those who have a home are very reluctant to engage in protest. It effectively removes their right to protest. You are not going to take a risk on your house.”
In contrast, in the criminal law, the penalty for protests was often small, he said.
“People who carry out direct action often turn out to be right. The suffragettes are just one example.”
The court had heard that IGas and Angus did not wish to restrict peaceful protest – but rather seek protection from disruption of their operations.
Mr Powlesland said:
“If fracking companies are only seeking the extra protection let them restrict their costs in any contempt application to that which would be required in the criminal courts.”
Summing up his case for the injunctions, Mr Maclean said:
“My clients are seeking to protect their private rights. There may be benefits to the right to protest but not at the expense of my clients’ private rights.”
He said protests could take place close to the sites, even where there were exclusion zones.
“The only reason that does not satisfy Mr Crane and those like him is that they are not interested in ordinary protest. They want to take part in direct action against my client.
“They are targeting direct action at an entirely lawful operation that my clients have a right to do. That is intolerable to my client and to any well-ordered society.”
Serving the injunctions
His Honour Judge Barker said he had concerns about how the draft orders were served.
The court had heard that the companies sent Facebook messages to lists of people and organisations on lists. The IGas list was drawn up by the company, the court heard. But the Angus Energy list had been bought from a third party, Judge Barker said.
He questioned the effectiveness of the approach.
“If you are a Facebook user and you see a message arriving in your account you do not recognise your first instinct would be to delete it. It seems defeatist.”
Alan Maclean said the companies’ only intention was to disseminate the injunctions as widely as possible.
The judge replied:
“By inviting 20 Facebook accounts to publish the injunction to the world at large? I do not understand.
“It is confusing and it appears that they are being served.”
He asked whether the companies had considered local newspaper advertising.
Mr Maclean said of local newspapers:
“Nobody buys them and they are disappearing like ‘snow off a dyke’ [disappearing rapidly].”
Judge Barker reserved judgement in the case until tomorrow afternoon (to be confirmed).
DrillOrDrop report of more of the challengers’ cases DrillOrDrop report of more of the challengers’ cases here
Reporting from this hearing was made possible by individual donations from DrillOrDrop readers