THINKING OF MAKING AN APPLICATION FOR A WITHOUT NOTICE INJUNCTION? BEST READ THIS JUDGMENT

June 19, 2019 · by · in Applications, Conduct

Any public body, indeed anyone, considering making an application for a without notice injunction is best advised to read the judgment of  Mr Justice Warby in Birmingham City Council v Afsar & Ors [2019] EWHC 1560 (QB).

 

“Urgency can only be a compelling reason for applying without notice if there is simply no time at all in which to give notice. Modern methods of communication mean that will rarely, if ever, be the case, and it was not the position here. You do not justify applying in secret by showing that your case has merit, or by saying that the relief sought is limited in scope and time, and will have only limited impact on the respondents. These are not relevant considerations, let alone compelling reasons for proceeding without notice.”

THE CASE

The case is well known. A group of protesters were protesting outside a school, against aspects of teaching at that school. The claimant local authority obtained a without notice injunction to prevent the protests.  The defendants made an application to discharge the injunction on the grounds of ground to provide full and frank disclosure. The defendants’ application was granted (with costs). However the judge made a new, modified, order, to stay in place until trial.

THE JUDGE’S COMMENTS ON THE RELEVANT GUIDELINES FOR THOSE SEEKING A WITHOUT NOTICE INJUNCTION

This part of the judgment contains a useful checklist for those making an application.

    1. It is not in dispute that the Council has standing to seek injunctions of the kind that were sought and granted here. Nor is there any dispute that the named defendants are amenable to the Court’s jurisdiction under the statutory provisions relied on.
    2. The pursuit of remedies against “Persons Unknown” has been a well-trodden path, ever since Bloomsbury Publishing Group v News Group Newspapers Ltd [2003] EWHC 1205 (Ch) [2003] 1 WLR 1633. There is no doubt that claims of this kind are legitimate in principle, and orders have often been made against Persons Unknown, in the media context, and in the context of trespasses and protests. But the limits of the jurisdiction and the practice in such cases have come under fresh scrutiny in two recent and important judgments: that of the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 [2019] 1 WLR 1471, and the subsequent decision of the Court of Appeal in Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515. Cameron related to a claim against an unknown driver, alleged to be responsible for a traffic accident causing injury. Ineos was closer on its facts to the present case, as it related to injunctions to restrict anti-fracking protests, and thus engaged s 12 HRA.
    3. The relevant procedural law is clear, and well-established, and is or should be well-known. There has been little dispute about the applicable principles. Key points are:-
(1) Any application to the Court should ordinarily be made by application notice, filed and served on the respondent, with the supporting evidence, not less than 3 days before the hearing at which the Court is to decide whether to grant the relief sought: CPR 23.3, 23.4, 23.7(1) & (3) and PD23A para 4.1.
(2) “An application may be made without serving a copy of the application notice if this is permitted by (a) a rule; (b) a practice direction; or (c) a court order”: CPR 23.4(2). “Where an application notice should be served but there is not sufficient time to do so, informal notice of the application should be given unless the circumstances of the application require secrecy”: PD23A para 4.2.
(3) All of the ordinary requirements for notice and service apply to applications for interim injunctions: see Part 25 and PD25A paras 2.1 – 2.4. The regime is similar: “The Court may grant an interim remedy on an application made without notice if it appears to the Court that there are good reasons for not giving notice” (CPR 25.3(1)), but “except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application” (PD25A para 4.3(3)).
(4) If the applicant does make an application for an interim injunction without giving notice:-
a) “… the evidence in support of the application must state the reasons why notice has not been given“: CPR 25.3(3);
b) The applicant comes under a duty to make full and frank disclosure to the Court of all matters of fact and law that are material to the application: Civil Procedure 2019 n 25.3.5. This is a broader obligation than the one specified in PD25A para 3.3 (“the evidence must set out … all material facts of which the Court should be made aware”).
c) The applicant (including its Counsel and solicitors) has a duty to make a note of the hearing, including but not limited to a note of the Court’s judgment, and to serve this on the respondent without delay: Civil Procedure 2019, n 25.3.10.
(5) “To ensure that court time is used efficiently there must be adequate preparation prior to the hearing. This includes the preparation and exchange of skeleton arguments, the compilation of bundles of documents …”, and the preparation of lists of authorities and bundles of authorities. Skeleton arguments for substantial hearings should be prepared, filed and served not later than 10am the day before the hearing: Queen’s Bench Guide 2018, para 12.3 (The Guide is “equally applicable to the work of the District Registries…” para 1.1.4; it should be borne in mind that there are some differences, but none that are relevant here).
(6) Any order for an injunction must:
a) unless the Court orders otherwise, contain undertakings to pay any damages the respondent may sustain which the Court considers the applicant should pay and, if the application was made without notice, to serve the respondent with the hearing papers; it must also contain a return date: PD25A para 5.1(1)-(3);
b) “… set out clearly what the respondent must do or not do”: PD25A para 5.5.
(7) “In an interim injunction case, if the duty of full and fair disclosure is not observed, the court may discharge the injunction”: Civil Procedure 2019, n 25.3.6. The court will then consider whether to re-grant the order: Civil Procedure 2019, n 25.3.8.
    1. It is worth expanding a little on some of these points, starting with the question of applications without notice. A series of authorities has emphasised how exceptional it is for the Court to grant an injunction or other order against an absent party, who has not had notice of the application and a chance to dispute it. The principle that the Court should hear both sides of the argument is an “elementary” rule of justice and “[a]s a matter of principle no order should be made in civil or family proceedings without notice to the other side unless there is very good reason for departing from the general rule that notice should be given”: Moat Housing Group South Ltd v Harris [2005] EWCA Civ 287 [2006] QB 606 [63], [71-72] (a case of alleged anti-social behaviour by a tenant). The law is particularly strict when it comes to applications for relief which, if granted, would interfere with the Convention right to freedom of expression. Section 12 of the Human Rights Act 1998 applies in all such cases: see s 12(1). Section 12(2) provides that in such a case
“If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied-
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.”
This is a jurisdictional threshold; unless the requirements of s 12(2)(a) or (b) are satisfied the Court has no power to grant an injunction. The Court has repeatedly deprecated the making of applications without notice in cases which engage s 12 HRA, without adhering to the requirements of the applicable rules and practice: see, for example, ND v KP [2011] EWHC 457 (Fam); O’Farrell v O’Farrell [2012] EWHC 123 (QB) [66], Bristol City Council v News Group Newspapers Ltd [2012] EWHC 3748 (Fam) [2013] 1 FLR 1205 [23-24] (Baker J).
    1. The principles relating to the duty of full and frank disclosure of facts are summarised in a judgment of mine, YXB v TNO [2015] EWHC 826 (QB), in terms with which neither Counsel has taken issue:
“19 …

ii) The duty requires the applicant to make a full and fair disclosure of those facts which it is material for the court to know: Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, 1356 (1) and (2) (Ralph Gibson LJ). Put another way, disclosure should be made of “any matter, which, if the other party were represented, that party would wish the court to be aware of”:ABCI v Banque Franco-Tunisienne [1996] 1 Lloyd’s Rep 485, 489 (Waller J).

iii) Non-disclosure of material facts on an application made without notice may lead to the setting aside of the order obtained, without examination of the merits. It is important to uphold the requirement of full and frank disclosure.

iv) But the court has a discretion to set aside or to continue the order. Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues that were to be decided. The answer to the question whether the non-disclosure was innocent is an important, though not decisive, consideration. See Brink’s Mat at pp1357 (6) and (7) and 1358 (Balcombe LJ).

20. Further points to be derived from Brink’s Mat are:-

i) The duty applies to facts known to the applicant and additional facts which he would have known if he had made proper inquiries before the application (1356H, Ralph Gibson LJ).

ii) If material non-disclosure is established the court will be “astute to ensure” that a claimant who has obtained an injunction without notice and without full disclosure “is deprived of any advantage he may have gained” (1357C, Ralph Gibson LJ).

iii) The rule in favour of discharge also operates as a deterrent to ensure that those who make applications without notice realise the existence and potential consequences of non-disclosure (1358D-E, Balcombe LJ).

iv) The discretion to continue the injunction, or to grant a fresh one in its place, is necessary if the rule is not “to become an instrument of injustice”; it is to be exercised “sparingly”, but there is no set limit on the circumstances in which it can be exercised (1358E-F, Balcombe LJ).”

    1. These are the principles relating to disclosure of facts. As to the law, the authorities are clear: there is a “high duty to make full, fair and accurate disclosure … and to draw the court’s attention to significant … legal and procedural aspects of the case”: Memory Corp v Sidhu (No 2) [2001] 1 WLR 1443 (CA), 1459-60. The duty is owed by the lawyers also. “It is the particular duty of the advocate to see that … at the hearing the court’s attention is drawn by him to … the applicable law and to the formalities and procedure to be observed”: Memory Corp, ibid.
    2. There is one important statutory provision that requires mention. On applications for injunctions which would interfere with freedom of expression before trial, HRA s 12(3) prescribes a unique threshold test: “no such relief is to be granted unless the court is satisfied that the applicant is likely to show that publication should not be allowed”. I set out what this means in Linklaters LLP v Mellish [2019] EWHC 177 (QB) [29]:
“This requirement looks forward to the time of a trial, and to what would happen then. “Likely” in this context normally means “more likely than not”, though a lesser prospect of success may suffice where the Court needs a short time to consider evidence/argument, or where the adverse consequences of publication might be extremely serious: Cream Holdings Ltd v Banerjee [2005] 1 AC 253 [16]-[23] (Lord Nicholls); ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329 [2019] EMLR 5 [16]. “
Unsurprisingly, it has been held that the duty of full and frank disclosure requires a party, that applies without notice for an interim injunction to restrain freedom of expression, to draw the Court’s attention not only to s 12(2) HRA, but also to the requirements of s 12(3), identifying the statutory threshold for the grant of any such relief: see Doncaster Metropolitan Borough Council v BBC [2010] EWHC 53 (QB) [29], [34-35] (Tugendhat J), Dar al Arkan Real Estate Development Co v Al Refai [2012] EWHC 3539 (Comm) [136-140] (Andrew Smith J).
    1. There is no rule as to the means by which this duty is to be performed. But it is well recognised that the applicant’s skeleton argument is a convenient vehicle for the discharge of this duty. It is common practice for the skeleton argument to contain a distinct section headed (for instance) “What the respondent might say”. Sometimes the evidence also deals separately with the duty of full and frank disclosure. This helps concentrate the minds of the applicant, the applicant’s legal team, and the Judge on the facts and arguments that would or might be put forward by the absent respondent.
    2. Since 2011, there has been a helpful and authoritative summary of all the key principles regarding applications of the present kind, collected in a single place for easy reference. Applications for interim injunctions that impinge on the right to freedom of expression are subject to the Practice Guidance: Interim Non-Disclosure Orders issued by the Master of the Rolls following the “super-injunction” furore of 2011, and reported at [2012] 1 W.L.R. 1003. The scope and purposes of the Practice Guidance are explained in its opening paragraph:
“1. This Guidance sets out recommended practice regarding any application for interim injunctive relief in civil proceedings to restrain the publication of information: an interim non-disclosure order. It is issued as guidance (not as a Practice Direction) by the Master of the Rolls, as Head of Civil Justice. Such applications may be founded on rights guaranteed by the European Convention on Human Rights (the Convention), or on grounds of privacy or confidentiality. They may also be made in respect of a threatened contempt of court, a threatened libel or malicious falsehood, harassment, or a Norwich Pharmacal application in support of such actions. All such orders will seek to restrict the exercise of the Article 10 Convention right of freedom of expression through prohibiting the disclosure of information.”

THE DETAIL OF THE CLAIMANT’S CONDUCT

The judge observed that many of the requirements for a without notice injunction were not complied with in the current case.
      1. I take all this from the skeleton argument and the Note of Judgment that was eventually provided by the Council, a week after the hearing had taken place. The paragraph numbers I have used are those assigned in that Note. But I can say little else about the hearing before Moulder J, as it remains the case that no other note of what took place at the hearing has ever been provided. All that I have is some statements made in the Council’s reply skeleton to which I shall come, responding to complaints of non-disclosure at the hearing.
Service
    1. It follows that when the orders were served on 3 June 2019, they were not accompanied by a note of the hearing. Nor were they accompanied by any note of the judgment, or by any Explanatory Note. None of those documents were available to the defendants’ legal team when they were appointed, later that week. Nor did the legal team have any note of what took place before Moulder J on 4 June, in the absence of the defendants, as the Council did not serve any note of that, either.
The 4 June application
    1. This was made by formal application notice, with evidence contained in the application notice itself. The evidence explained that the purpose was to “clarify” the order by extending it to cover an area of green space on the opposite side of the road from the school, which the protestors had started to use after service of the original order. Although the order had been served, no notice was given of this application. There was no evidence that attempted to explain or justify applying without notice. No new skeleton argument appears to have been filed. There is, again, no note of the hearing. I do now have a note of the short judgment given by Moulder J. She recognised that in reality the application was to amend rather than clarify, but was satisfied the amendment was appropriate. She applied the reasoning from the previous Friday, concluding that it was “just and convenient” to grant the application. There is no reference to the question of notice. I conclude that there was no attempt by the Council to justify making this application without notice, or even to identify to the Judge the need to justify such a procedure.
The return date application
    1. The Council continued to fall short of its procedural obligations, and its duty to help the Court achieve the overriding objective. It was on Thursday 6 June that I was assigned to hear the application on the return date. I had no papers. My clerk was able to obtain soft copies of the amended Orders from Mr Manning during the afternoon of that day, but no other papers were available. A bundle should have been filed by the Council on the Thursday. On the Friday morning, and early afternoon, I was busy with another urgent injunction application. Eventually I received, from the Court, the hearing bundle that had been before Moulder J. That was shortly after 1pm. It had no index. The Council never filed or even prepared an updated hearing bundle for the return date. No hard copies of the orders were provided. The Council filed no evidence as to service of the orders, or the current position on the ground. A skeleton argument for the return date should have been filed by 10:30 on the Friday. None was ever prepared. What actually happened was that, at 2 minutes to 5 on the Friday, after prompting from my clerk, I was sent the original skeleton dated 31 May 2019. I was not provided with the authorities relied on by the claimant.
    2. The defendants’ legal team, having been instructed late, emailed a skeleton argument to my clerk at 18:50 on Friday night, following shortly afterwards by copies of the authorities relied on by them. The defendants’ skeleton argument complained, among other things, of non-disclosure of matters of law and of fact, and of the failure to provide notes of the hearings and judgments. On the Saturday afternoon, I reviewed the parties’ skeleton arguments, identified and collated copies of relevant authorities that had not been cited, and arranged for these to be emailed to Counsel. On the Sunday night, at 22:11, the defendants’ witness statements were emailed to my clerk and to the Council’s legal team. At 23:30 Mr Manning emailed my clerk with the claimant’s notes of the judgments of Moulder J, and a supplementary skeleton argument. I was able to read most but not all of this before the hearing, and had to complete my reading over the midday adjournment on Monday 10 June.
Discharge for breach of the duty of full and frank disclosure
    1. I have already identified some breaches of this duty, at the hearings of 31 May and 4 June 2019. I shall say a little more about those, and others. Discharge does not follow automatically, and the Court need not demand perfection. But in my judgment the breaches here are serious enough in combination to require discharge. The multiple failures by the Council to comply with its other procedural responsibilities towards the defendants and the Court provide additional reasons for exercising my discretion to discharge both of the orders granted by Moulder J even though, as will already be clear, I am satisfied that the threshold set by s 12(3) HRA is satisfied, and that injunctions should be granted. It may well be that Moulder J would have granted the orders she did, or some similar orders, if the Council had scrupulously complied with all its responsibilities. But that is not the test.
(1) Application without notice
    1. The Council correctly identified the relevant procedural law; s 12(2) HRA was cited in Mr Manning’s skeleton argument. But the evidence and argument advanced on this point fell short. I have already identified the non-disclosure of a material exchange of emails with the Court. It remains to address the way the Council put the case in relation to secrecy.
    2. Paragraph 3 of the skeleton argument explained why the Council had “decided to make this application at this time, and to do so on a without notice basis in the first instance, notwithstanding that the protests have been continuing for some weeks”. In this way, the argument rolled up what are on analysis three separate points, each requiring separate justification: delay in applying, applying without notice, and applying at all. Later in the skeleton argument it was submitted that “… the urgency of the need for relief and the likely adverse effect of giving notice are compelling reasons for the grant of relief without notice.” The “adverse effect” relied on was the “fear” of escalation ([41] above). This was the point made in the evidence, and it is reflected in the Certificate of Urgency, on which I have already commented.
    3. The skeleton argument went on to submit that “in deciding whether there is a compelling reason, the court should consider the evidence as a whole and the nature of the proposed restriction on freedom of expression”. It was argued that the restrictions proposed did not prohibit protest as such, but only geographical restrictions; that the interim relief would only last for a short period, and that it would “not be a significant curtailment of the Defendants’ human rights”; it was said that the protests were intimidatory and obstructive; and, finally:-

“The harm to the staff, children and parents is severe, and is such that given the urgency of the application and the risks of an escalation in the conduct complained of, there is a compelling need for the court to impose the limited restrictions sought in relation to the street protests.”

    1. Urgency can only be a compelling reason for applying without notice if there is simply no time at all in which to give notice. Modern methods of communication mean that will rarely, if ever, be the case, and it was not the position here. You do not justify applying in secret by showing that your case has merit, or by saying that the relief sought is limited in scope and time, and will have only limited impact on the respondents. These are not relevant considerations, let alone compelling reasons for proceeding without notice. The likely effect of giving notice is clearly a relevant consideration, and can be a compelling reason for applying in secret. What Tugendhat J said in RST v UVW [2009] EWHC 2448 (QB) [2010] EMLR 13 [7] was: “the facts are such as to give rise to a real prospect that, if notice is given, the defendant may take steps to defeat the purpose of the injunction.” The Council cited this passage, but failed to properly to analyse the legal and factual position and to present a full, fair and balanced picture.
    2. RST v UVW was a case of apparent blackmail. That is a category of case in which application without notice is often made, for good reason. Notice may lead to the carrying out of the blackmail threat. Freezing orders, where the risk is that notice will allow the respondent to spirit away the money to be frozen, provide another example. But the risk relied on here was not in reality that the respondents would take steps to “defeat the purpose of the application”. Rather, it was that they would do more of what they had been doing for weeks, only worse. There were several problems with that line of argument. If the application was made on short notice, the respondents would only have a limited time and opportunity to escalate; they would probably be preoccupied by dealing with the litigation. Most importantly, though, the entire week was half-term. Notice could have been given on the Tuesday, Wednesday or Thursday for a hearing on the Friday. It is hard to see a risk of any, let alone “severe”, harm to parents and children. No pupils were at school, and no parents were attending to drop them off or pick them up. Some staff may have been at the school, but the contention that notice would have given rise to a risk of “severe” harm to them does not seem persuasive.
    3. In my judgment, there can be no doubt that the Council’s duty of full and frank disclosure required it to provide the Court with a distinct, clear, and sufficient explanation, founded upon evidence, for making its application without notice to any of the defendants, identifying the counter-arguments which could be put forward, and explaining why those arguments should not be accepted. It failed to discharge that duty. Instead, it wove together a number of disparate strands of reasoning, some of which were irrelevant, and it put forward a confused and confusing case on this issue. The risk of escalation should have been examined much more carefully. If that had been done, it would have been incumbent on the Council to point out that there was no risk of the whole purpose of the application being defeated, and to highlight the most important fact, namely that the case could be dealt with on notice before the school went back after half term. On this ground alone, the injunctions must be discharged.
    4. The breaches of duty in this respect were particularly egregious when it came to the application of 4 June. It is not easy to see what new evidence there was to justify a variation of the order which the claimant itself had sought. It is impossible to understand the grounds for making this application without notice. By that time, it could no longer be said that giving notice might prompt escalation; the Council already had in place the very relief that it had sought at the hearing on 31 May. No other basis was identified. It seems that the question of notice was simply ignored.
(2) Failure to identify the threshold for granting an injunction
  1. The failure to cite s 12(3) HRA was clearly a deliberate omission. Not only was the subsection replaced in the skeleton argument by the ellipse “…”, the skeleton argument made no reference to the need to demonstrate a likelihood of success at trial, or to the authoritative interpretation of s 12(3) in Cream Holdings v Banerjee. Instead, it focused on the lawfulness and proportionality of the relief sought. The draft order prepared by the claimant reflected this approach, making no reference to s 12. It is thus apparent that the reason why s 12(3) was not cited was because nobody on the claimant’s side had identified its relevance to the case.
  2. This is remarkable, and at first, I found it hard to comprehend, because the applicability of s 12 as a whole had been recognised and identified to the Court. The explanation seems to lie in Mr Manning’s primary submission to me on this issue. He argues that in this case it was not wrong to omit reference to s 12(3), which is irrelevant, because this case is not about “publication”. That reflects a misunderstanding of the statutory and legal context in which that word is used.
  3. The sub-section forms part of a code expressly designed to address cases where relief is sought that might interfere with freedom of expression. There is no doubt that this is such a case. The claimant acknowledged as much by citing s 12 to Moulder J. Mr Manning’s argument has to be that, despite this, s 12(3) is concerned only with a sub-set of such cases: those involving “publication”, meaning something other than what was going on here. He cites no authority in support of this narrow construction, and I am unaware of this point having ever been made before. It was wrong, in my judgment, to proceed without notice without reference to s 12(3), on the basis of an interpretation, unsupported by any authority, which is at odds with the Practice Guidance. If this was the view of the Council, the Judge should have had this issue drawn to her attention, along with the available counter-arguments. Those arguments would have included the approach adopted in the Practice Guidance to which, it appears, those acting for the Council had not directed their own attention let alone that of the Judge.
  4. But I would go further. I am satisfied that it would be quite wrong to treat the word “publication” in s 12(3) as having a limited meaning, restricted for example (as Mr Manning’s submission seemed to imply) to commercial publication. It is hard to see how that such an approach could be rationally defended. It would give commercial publishers preferential treatment compared to other defendants, such as individuals communicating for private purposes, on social media. As everybody knows, some social media accounts have larger readerships than some paid-for newspapers. But there is a more fundamental point. In the law of defamation, “publication does not mean commercial publication, but communication to a reader or hearer other than the claimant”: Lachaux v Independent Print Ltd [2019] UKSC 27 [18] (Lord Sumption). This is generally true of the torts associated with the communication of information, sometimes known as “publication torts”, and the related law (see the discussion in Aitken v DPP [2015] EWHC 1079 (Admin) [2016] 1 WLR 297 [41-62]). Parliament must be taken to have legislated against this well-established background. Section 12(3) applies to any application for prior restraint of any form of communication that falls within Article 10 of the Convention. This is appropriately reflected in the language of the Practice Guidance, quoted above.
  5. Section 12(3) may not be relevant to every anti-social behaviour injunction. There are no doubt many ways of behaving anti-socially that do not involve speech, or writing, or other forms of expression. But there can be no doubt as to the materiality of s 12(3) in this case. It contains a statutory prohibition on the grant of a pre-trial injunction which interferes with freedom of expression, unless the Court is satisfied that the claimant is likely to obtain a final injunction. In fairness to Mr Manning, it must be recognised that he identified that the orders sought involved interference with Article 10 rights, and addressed the Judge upon that topic. It may be that, had the Judge been directed to the statutory threshold test, she would have been satisfied that it was met. But I do not accept Mr Manning’s fall-back submission that if, contrary to his primary argument, s 12(3) applied, the hearing should be treated as involving, in substance, a submission and finding that success at trial was likely. The Court could not be so satisfied of that unless it addressed its mind to the question. The Council failed to pose the question, with the result that the application was determined on the lower threshold test set out in the 2014 Act for anti-social behaviour injunctions of all kinds.
  6. There is an additional point, worthy of mention. Where the Court concludes that an injunction application is, to any extent, aimed at protecting the reputation of the claimant it will normally apply a still higher threshold at the interim stage. The “defamation rule” requires an applicant to show that the claim is bound to succeed: see LJY v Persons Unknown [2017] EWHC 3230 [2018] EMLR 19 [41-43]. I do not rest my decision on this point, which was not argued, but there is evidence here that could be said to indicate that reputational concerns are at stake, among others, so this is something to which future applicants in cases of this kind should be alert.
    1. Respondents against whom injunctions have been granted without notice often complain of material non-disclosure of facts or evidence. Here, Mr Randall QC has complained that Moulder J was given a “selective and partisan summary of the underlying evidence”. I think that is something of an overstatement. The skeleton argument was necessarily selective. As Mr Randall conceded in oral argument, one should not be overly pernickety about the way this is done. I doubt that I would in all the circumstances have discharged the orders on this basis; but I do agree that the Council could and should have done more to highlight what the defendants might have said in opposition to its application, had they been given the chance to have a say.
    2. In the event, the response of the defendants is (in broad summary) that their rights to protest should be zealously safeguarded and protected, and interfered with only to the extent that this is imperative; and that the Council has overstated both the conduct involved, and its impact on those affected. Mr Randall submits that, even when dealing with material and views that come across as fundamentally and obviously wrong, the Court “must strive not to inhibit the freedom to express views, the freedom to demonstrate and the freedom to organise politically”: Chief Constable of Bedfordshire v Golding [2015] EWHC 1875 (QB) [37] (Knowles J). As he points out, freedom of expression includes the right to express views which certain sections of the community would find objectionable or even offensive. On the facts, he gone so far as to say that only someone with “snowflake sensitivity” would suffer alarm or distress as a result of what has in fact been done. This is a rhetorical flourish, but responses on these general lines were entirely foreseeable. The Council, presenting the Court with a 220-page hearing bundle, could not assume that it would all be read in the available time. It ought to have identified for the Judge the chief points that could be made by the defence, so far as the facts are concerned.
    3. It is unnecessary to enter into any great detail, but three points seem to me to have particular force. The first is that the police had determined that “no-one is breaking the law”. This was stated in the Headteacher’s statement, at paragraph 72, but not brought to the Court’s attention. This is significant because the Protection from Harassment Act 1997 makes harassment (within the meaning of that Act) a criminal offence. Secondly, although a substantial number of witness statements were provided from police officers, the Council did not draw to the Court’s attention that several of these made clear in terms that the authors had not been alarmed or distressed by what was going on. Thirdly, the “chants” on which heavy reliance was placed by the Council were in reality anodyne in content rather than offensive, as would naturally have been inferred. The chants demanded that “Parent Governors – step down” “Let kids – be kids”, “Listen to – parents” “Learn how to – mediate” and “We are no – homophobic.” This is apparent from one of the police witness statements, but the Court was evidently not taken to that detail.
Re-grant
    1. Despite these deficiencies in the presentation of the case at the without-notice stage, I came to share the view of Moulder J that, on a proper assessment of the merits, interim injunctions are appropriate. I accept the submission of Mr Randall, that I should ask and answer the two questions I posed in an earlier protest case, Thames Cleaning and Support Services Ltd v United Voices of the World [2016] EWHC 1310 (QB) at [46]:
“First, has the claimant demonstrated that it would probably succeed at a trial in showing a risk, justifying an injunction, that unless restrained the defendant will cause protest or demonstration which is unlawful, and actionable at the suit of the claimant? Secondly, if so, can an injunction be framed which serves to restrain the encouragement of unlawful conduct, without straying into improper restraint of lawful protest?”
I answer both questions “yes”. Mr Manning has persuaded me that, on the evidence before the Court at this stage, the Council appears more likely than not to succeed at trial in obtaining injunctions – albeit rather more limited than that put in place at the outset – which serve to protect against harassment and other anti-social behaviour, whilst permitting legitimate expression of lawful dissent against the policies of the School.
Persons Unknown
    1. At one stage the propriety of any order against Persons Unknown was controversial. Although Mr Randall appears only for the named defendants, he queried whether the relevant law had been properly examined. That was entirely proper, as he could not know when he raised the point what had been said to the Judge at the without notice hearing. In the event, although I have some reservations, I was satisfied that the present case falls within the scope of the principles identified in Boyd v Ineos.
    2. My reservations concern the identity of the fourth defendant. As things stand, this is “all persons” other than the named defendants. There is no limitation on the category, with the consequence that the order is, in form and in practice, an order against the entire world including – as I observed at the hearing – me. I have not been provided with any reasoned explanation for not limiting the category of Persons Unknown who are to be made parties to this action in the way that has been standard practice since the Bloomsbury case: a designation must be supplied which sets some limits upon the class in question, and enables a person to state whether any given individual is a member of the class of Persons Unknown who are targeted by the claim and the injunction. The new order will therefore be limited by such a description. Unless the parties persuade me otherwise, this will be “Persons Unknown seeking to express opinions about the teaching at the School”.
Substance
  1. There is much that has been said by the protestors which falls firmly within the realm of reasonable, peaceful and lawful protest, even if it is offensive. Complaint is made of placards with messages such as “Adam and Eve, not Adam and Steve”. These may be upsetting to some, but must be viewed as a legitimate means of expressing a lawful opinion. Complaint is made that photographs have been taken without permission. That may in some circumstances be unlawful but hardly amounts to harassment. The Headteacher complains of being called a “liar”. I do not doubt her evidence that this is distressing, but her complaint appears to be of defamation and I would not prohibit such speech without proof that the claim was bound to succeed. I do not consider it proper to grant an injunction to prohibit social media posts which are “offensive” to teachers. That would represent a vague and unjustified incursion into freedom of speech.
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