The shale gas company, Ineos Upstream, has been criticised by the High Court for “improper conduct” and “inexcusable delay” over its injunction against anti-fracking protests.
The judge ordered Ineos to pay the costs of the environmental campaigner, Joe Corre, who had sought to have the injunction struck out as an abuse of process of the court.
His honour Jonathan Klein said:
“I have found improper conduct and inexcusable delay [by Ineos].”
“The injunction has been in place for many months longer than it should have, in broader detriment than just to Mr Corre.”
Judge Kein said Mr Corre had sought progress in the case for a considerable period of time. But he said:
“The whole history of this case, looking at correspondence, is that there has been delay after delay on the part of the claimant [Ineos].”
“The proportionate response in this case is to impose a sanction on the claimants in relation to the costs of the applications.”
Had they not acted improperly, he said, Mr Corre’s application would not have been needed.
Ineos was ordered to pay more than £37,000. The company had previously claimed its own costs £75,000 for a one-day hearing earlier this month.
Judge Klein ruled against Mr Corre on the strike out of the injunction. He approved Ineos’s application to discharge the injunction on the grounds of changed circumstances. But he refused the company’s bid to halt the legal proceedings (stay the claim).
Today’s hearing was the latest in a long-running legal dispute between Ineos and its opponents.
The injunction was first granted in July 2017 and, at the time, it was the most wide-ranging restriction on protests at shale gas sites. It applied to eight named locations, routes to proposed sites, depots, sub-contractors, equipment and operations.
But two years later, the appeal court ruled that two key sections were unlawful. It removed orders prohibiting protests on the public highway and against Ineos’s supply chain.
The appeal court also ruled that the remaining sections on trespass and private rights of way and the issue of costs should be reconsidered by the High Court.
That hearing never took place.
At the online hearing last week, Mr Corre’s barrister, Stephen Simblett QC, likened the Ineos injunction to “a handbag which you put in a cupboard until it matches your outfit”. He accused Ineos of “inexcusable and unexplained delays” intended to “warehouse” the injunction.
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.
Alan Maclean QC, for the company, denied there had been a “culpable delay”. He applied to discharge the injunction because planning permission had expired at two of the company’s shale gas sites.
But he said Ineos should be allowed to apply to the court to reinstate all or any part of the injunction if circumstances changed. This could include the lifting of the moratorium on fracking, or any indication that the government would do so, as well as a planning application or permission for any of the shale gas sites.
Mr Maclean said Mr Corre would still have made his strike out application, even if there had not been delay. The judge rejected this argument.
Judge Klein said Ineos was well resourced and had specialist solicitors. Following the Court of Appeal ruling, it was “incumbent on them to press on with the claim”, the judge said.
“I have concluded that the Claimants have been inexcusably at fault for allowing the claim to be delayed for almost three years.”
But he dismissed the suggestion by Mr Corre that Ineos was guilty of of an “abuse of process” required in strike out applications.
Ineos had wanted to be able to apply to the courts for reinstate the injunction if circumstances changed again. This would avoid the need to and cost of beginning fresh proceedings. The judge said he would not stay the claim and leave the case unresolved.
The case will return to the court to decide the issue of costs ordered by the Court of Appeal and to finalise the arrangements for the discharge of the injunction.