The anti-fracking campaigner, Joe Corre, has asked the High Court to strike out the injunction granted to Ineos Upstream against protests at shale gas sites.
At a hearing today, his legal team accused Ineos of “warehousing” the injunction and “abusing the court process”.
Ineos in response has applied to discharge the injunction because of changing circumstances. But it also sought to prevent the strike out so that it could revive the injunction’s terms in future.
The company currently has no shale gas exploration sites following the lapse of two planning permissions. A planning decision on another site has not yet been issued.
The original injunction was granted to Ineos nearly five years ago in July 2017.
In April 2019, the Court of Appeal ruled that two section of the injunction, applying to protests on the highway and against Ineos’s supply chain, were unlawful.
The appeal court ruling also said the issues of costs and the remaining sections on trespass and private rights of way should be reconsidered by the High Court. That hearing never took place.
Today, Stephen Simblet QC, for Mr Corre, likened the Ineos injunction to “a handbag which you put in a cupboard until it matches your outfit”.
He said the company sought to “park the injunction” with “inexcusable and unexplained delays”.
This meant that the High Court was not able to impose a time limit on the remaining sections of the injunction or rule on costs, he said.
“We say their failure to send the case back to the High Court was deliberate because they had an interest in this injunction lasting in a indefinite way, rather than having a time limit.
“They [Ineos] do not want to discontinue the injunction because they would have to pay our costs”.
Ineos had also been “deliberately misleading” in correspondence with Mr Corre’s legal team, Mr Simblet said.
He described how company lawyers had repeatedly written that they were preparing an application to vary the injunction terms. They advised Mr Corre against any strike-out action because of the risk of costs.
But the variation application was never made, Mr Simblet said. Instead, Ineos applied less than a week before today’s hearing to discharge the injunction but stay the strike-out.
Mr Simblet said the strike-out application was proportionate. The company should be required to start again if it wanted a new injunction.
“This is a situation where the claimant [Ineos] has done nothing until it was forced to by the court to explain why it failed to progress its claims.”
Ineos submitted a costs schedule of £75,000 for today’s one-day hearing, the court was told.
Strike out would be “very draconian”
Alan Maclean QC, for Ineos, denied there had been a “culpable delay”.
He said the company was making the application now because planning permissions lapsed at potential shale gas sites at Harthill, in south Yorkshire, and Marsh Lane, in Derbyshire, in June and August 2021.
He said the company accepted that the imminent and real risk of protest no longer existed.
But he said striking out the injunction, as Mr Corre sought, would be “very draconian” and “severely disproportionate” for Ineos.
People could potentially trespass on private land and set up camps, he said, and sorting this out would take a lot of time and money.
Mr Maclean also said this was a “fast-moving situation”, with statements in parliament and changing circumstances.
He told the court that the industry regulator, the Oil & Gas Authority (OGA), had today allowed Cuadrilla another year to plug and abandon its wells at Preston New Road. [The OGA did not confirm this when DrillOrDrop checked this afternoon and Cuadrilla did not respond to our questions.]
The judge, His Honour Jonathan Klein, asked why Ineos had not applied to discharge the injunction after the government imposed a moratorium on fracking in England in November 2019.
Mr Maclean said the moratorium had not stopped Ineos exploring for shale gas. The discharge application was very different from the application to vary the injunction’s terms, he said.
Are you saying it has taken seven months to draft this application, the judge asked.
No, said Mr Maclean. The decision to let the planning permission lapse had diminished the risk profile substantially, he said.
Judgement in the case was reserved.