“Priced out of justice” – environment organisation forced to withdraw from challenge to fracking protest injunction

190625 Cuadrilla CoC 1 DOD

Campaigners challenging Cuadrilla injunction against fracking protests, Manchester Civil Justice Centre, 25 June 2019. Photo: DrillOrDrop

Friends of the Earth said today the threat of “huge financial penalties” had forced it to withdraw from a court challenge to Cuadrilla’s injunction against protests outside its fracking site near Blackpool.

A legal ruling had left the organisation at risk of having to pay Cuadrilla’s costs of £85,000.

The injunction was granted in July 2018 covering protests at the company’s Preston New Road shale gas site. Last week, the site caused the UK’s strongest fracking-induced earth tremor, shaking buildings and reportedly damaging homes.

Tomorrow, three campaigners, Katrina Lawrie, Christopher Wilson and Lee Walsh, will try to reduce the scope of the injunction, described by human rights lawyers as “draconian”.

In June 2019 the campaigners were found in contempt of court – the first time opponents of fracking had been brought to court for breaching the terms of an injunction. They hope that making the injunction less draconian will help to reduce their sentences, due to be handed down on Tuesday.

Friends of the Earth said it had intended to join their case against Cuadrilla. It said it wanted to defend the human rights of the wider public, covered by the injunction as ‘persons unknown’.

The organisation had argued that substantial parts of the Cuadrilla injunction were unlawful and incompatible with changes ordered by the Court of Appeal to a similar injunction granted to Ineos.

Friends of the Earth applied for cost protection – a way of reducing what it would have to pay if it lost the case. It argued that it was a public interest litigant, standing up for its supporters and the wider public concerned about fracking.

But the High Court judge, Mark Pelling, who also granted the Cuadrilla injunction, refused to allow costs protection, even though the company had said it would seek costs of £85,000 if Friends of the Earth lost.

Judge Pelling also ruled that Friends of the Earth had to pay Cuadrilla’s legal costs for opposing the application for cost protection.

“Blow for civil liberties”

Dave Timms, head of political affairs at Friends of the Earth, said:

“This ruling is a blow for civil liberties and access to justice.

“The public’s right to peacefully protest is being severely and unlawfully restricted by Cuadrilla’s injunction. We should be allowed to challenge it without facing huge financial penalties.

“Cuadrilla claim to respect the right to protest but they have done everything they can to stop us getting into court to challenge their draconian and restrictive injunction.

“The Court of Appeal has already found that a virtually identical injunction granted to Ineos was substantially unlawful, we were simply attempting to ensure the law was applied to this injunction too.”

Mr Timms said:

“We are effectively being priced out of justice. The cost ruling means that the rights of the wider public who might be caught by disproportionate injunctions against persons unknown cannot be represented in court by public interest organisations, without taking on huge financial risk.

“This is especially disturbing given the increase in protester numbers at the Preston New Road site following the recent 2.9ML quake triggered by Cuadrilla’s activities, the largest fracking-induced tremor yet recorded in this country.

“We stand in solidarity with the three defendants in their legal challenge to reduce the injunction and sincerely regret that we will not be able to participate formally in the proceedings on behalf of persons unknown. We will continue to stand up for the right to protest.”

“Powerful companies can use courts to deter peaceful protest”

Stephanie Harrison QC, barrister at Garden Court Chambers, had been due to represent Friends of the Earth. She said today:

“Powerful private companies, not only governments, can run rough shod over our democracy and the fundamental rights of citizens to be heard and to oppose their activities.

“Private companies deploying their superior resources and financial might to utilise Court proceedings to prevent and deter peaceful protest through pursuing draconian injunctions are a serious threat to our civil liberties.

“The use and misuse of the exceptional measure of proceedings against wide-ranging groups of persons unknown is of particular concern. By definition those persons, whose rights are affected and curtailed, will not be before the Court to defend themselves and without the availability of costs protection campaigning organisations like Friends of the Earth cannot risk the crippling costs of High Court legal proceedings and adverse costs orders to ensure that their voice is heard.

“An urgent review of the use of civil proceedings to regulate free speech and peaceful protest and the implications of these proceedings for access to justice and equality before the law is urgently required.”

Caps on legal costs are available in environmental judicial review cases. Cost protection may also be granted in non-environmental judicial reviews.

But Friends of the Earth’s case was against a private company, rather than a public body so the issue of costs was more complicated.

Judge Pelling ruled that cost protection was not available, irrespective of the public interest or issues at stake, because it was private litigation between private parties.

  • DrillOrDrop will be reporting from the legal challenge and the sentencing hearing, both of which are at Manchester Civil Justice Centre. The application to vary the injunction begins on Monday 2 September at 10.30am, in court 41. The sentencing of the three campaigners is expected to be on Tuesday 3 September at the same court. Judge Pelling has already said he will not impose a prison sentence

11 replies »

    • Hi Jim and John

      Thanks for your comments.

      Having spoken to FoE, we can confirm that it was the Limited Company (FoE Ltd) which was hoping to be involved in this action.

  1. Ruth or Paul, was it Friends of the Earth or Friends of the Earth Ltd. that intended to join the case and had applied for cost protection?

  2. I am no lawyer, but given that there seems to be precedent in the shape of the Court of Appeal’s decision re the Ineos injunction, is it not the case that Friends of the Earth run little risk in joining the campaigners’ action against Cuadrilla´s injunction?

    [Comment edited at poster’s request]

  3. Your right it would have been highly unlikely FoE would have lost. So the word ‘forced’ should be changed to surrender. Although to be fair to FoE they’ve always been anti direct action as it’s grassroots and there is no money in that for them. You have to look at how they used my win against INEOS for that. Their media team was portraying it as their win, when they refused to challenge at the high court. A spineless organisation.

    [Typos corrected at poster’s request]

    • Actually, the most likely outcome would have been a partial win. That would have left FoE due to pay part of the £85k, which still would have been potentially crippling for them. That is what happened, for example, to the McLibel defendants. Part win. Part lose. Part costs. Fully bankrupt.

      [typo corrected at poster’s request]

      • You are kidding me? They’ve been begging for money for Brazil lately. FoE have made a fortune out of anti fracking.

  4. Based upon FoE success rate in such actions over recent times, best they withdraw! Seems to have been the kiss of death for the antis.

  5. And quite right too!! If they were so sure of their case, they wouldn’t need protection, and if not, they are wasting everyone’s time, for which there is a cost they must pay.

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