AN APPLICATION FOR COMMITTAL THAT WAS “WHOLLY FRIVOLOUS” AND “BORDERS ON VEXATIOUS”: CLAIMANT NOW REQUIRES PERMISSION TO BRING SIMILAR COMMITTAL PROCEEDINGS…

For the second time today I am writing about an injunction case which failed because the claimant had failed to prove compliance with an order for service. However this particular case has more sinister overtones.  The claimant attempted to bring proceedings against a solicitor who was representing certain protestors.  The judge description of  the application was that it was “wholly frivolous, and it borders on vexatious”. The application failed – badly. For failure to serve and on its merits (or rather lack of merits).  The result of the application was that it was  the claimant is now subject to an order requiring it to obtain permission of the court before contempt proceedings against “persons unknown” in the injunction.  This is the judgment of Mr Justice Nicklin in MBR Acres Ltd & Ors v McGivern [2022] EWHC 2072 (QB)

“In my judgment this contempt application has been wholly frivolous, and it borders on vexatious. The breaches alleged were trivial or wholly technical. Apart from a technical trespass, it is difficult to identify any civil wrong that was committed by Ms McGivern. At worst, obstructing the vehicles for a short period might be regarded as provocative, but there were no aggravating features. As the Claimants must have appreciated, this was not the sort of conduct that the Injunction was ever intended to catch. The Court does not grant injunctions to parties to litigation to be used as a weapon against those perceived to be opponents.”

THE CASE

The claimant had obtained an injunction, including against persons alone. The respondent was a solicitor who, on occasion, had represented certain of the protestors against whom the injunction had been obtained.   The claimant brought contempt proceedings against the respondent on the grounds that she had been on the site and had knowingly breached the injunction.  One of the issues was whether the respondent knew of the terms of the injunction.  The claimant’s case was that she had been shown it whilst outside court.

THE SCANTY NATURE OF THE CLAIMANT’S EVIDENCE

The claimant’s case on knowledge rested on evidence from a police officer who, from memory, thought he had shown a copy of the injunction to the respondent outside a court room.

1. 1. Three witnesses were called to give evidence for the Claimants: Ms Pressick, PC Shailes and David Manning. Although the Affidavit from Mr Manning had not been provided in accordance with the directions for service of evidence, in the end no objection was taken by Ms McGivern to his giving evidence.

1. 1. As most of the relevant evidence provided by Ms Pressick was in the form of the CCTV footage that she produced, she was not cross-examined on any of the evidence as to Ms McGivern’s alleged breach of the Order. Mr Underwood QC asked her some limited questions about the email she had sent to PC Shailes.

1. 1. When he gave evidence, PC Shailes confirmed the contents of his witness statement (see [47] above) and was then cross-examined by Mr Underwood QC. PC Shailes confirmed that he had not taken a note of the events on 27 April 2022. He had first been asked to recall them on 18 July 2022, when he was asked by his Detective Sergeant to provide any information he had regarding discussions with Ms McGivern. PC Shailes stated that he had told her what was contained in his statement. When asked about the additional piece of information, recorded in Paragraph 11(v) of Ms Pressick’s Ninth Affidavit (see [43] above), PC Shailes replied: “I don’t know who wrote that, so I can’t comment on it“. More generally, asked how good his recollection of the events of that day was, PC Shailes answered: “I can recall the day. Of course, there’s going to be bits that I forget because it’s been several months since then.” Mr Underwood QC asked how confident he was that he had correctly identified the name of the prosecutor. PC Shailes replied that the name of the prosecutor had been provided to him by the “case team” and that if the name was incorrect then he had been “misinformed“. The officer could not say whether he knew Ms Morrissey. He attended Cambridge Magistrates’ Court once every three to four months.

1. 1. PC Shailes could not remember whether Ms McGivern and Ms Morrissey had arrived in the police room together and, as he had not been in Court, he could not confirm whether they arrived after the Court had adjourned for lunch at around 12.30. There followed this exchange (which I need to set out because of a point raised by Ms Bolton):

Q: I’m going to suggest to you that by the point [Ms McGivern and Ms Morrissey arrived in the police room] the email hadn’t arrived from Ms Pressick. What do you say about that?

A: Again, I’m not aware, I can’t recall the timings of exactly when the emails were sent or when people walked in.

Q: But you can recall the sequence?

A: I can’t, no.

Q: And I’m going to suggest that when Ms McGivern and the prosecutor saw you in the room to discuss the matter with you, the email had not arrived. What do you say?

A: Again, I don’t know.

With that answer, Mr Underwood QC completed his cross-examination.

1. 1. In re-examination, Ms Bolton repeated a part of the cross-examination where PC Shailes had initially confirmed that that he recalled what was included in paragraph 11(v) of Ms Pressick’s witness statement, and then asked him what maps were being commented upon. PC Shailes answered that they were the maps of outside MBR Acres in Wyton that were part of the Injunction.

THE FAILURE TO COMPLY WITH THE COURT ORDER FOR SERVICE OF NOTICE OF THE INJUNCTION

The claimant’s application failed on this ground alone.

1. 1. David Manning, the security officer at the Wyton Site, was called to give evidence about the posting of the Injunction on the notice board opposite the Wyton Site, in purported compliance with the alternative service order. In his Sixth Affidavit, Mr Manning stated that, on 29 April 2022, he had received, by email from Mills & Reeve, copies of the Injunction and two letters to be attached to the noticeboard. The Injunction and letters were printed out, and Mr Manning then put the documents on the noticeboard. Four copies of the documents were placed in a post-box underneath the noticeboard to enable them to be taken away. He exhibited copies of the documents that he had attached to the noticeboard. The letter from Mills & Reeve was a two-page document, dated 29 April 2022, and headed “VERY URGENT. THIS LETTER SERVES AN INJUNCTION ORDER OF THE HIGH COURT WHICH YOU ARE HEREBY DEEMED ON NOTICE OF” (“the 29 April Letter”). At the top right corner of the first page appeared an email address, and at the bottom of the page the address of Mills & Reeve was provided. The first page of the document (and half of the second) was taken up with identification and description of the categories of “Persons Unknown” who were Defendants to the proceedings. Under that, on page 2 of the 29 April Letter, appeared the following:

“Dear Sirs/Madams,

Claim Number: QB-2021-003094: MBR Acres Limited and Others -and- Free the MBR Beagles and Others (the “Proceedings”)

By way of service a copy of the Injunction Order of Mr Justice Nicklin dated 31 March 2022 and sealed on 27 April 2022 has been uploaded onto the following shared file website [2nd Dropbox Address given]

Breaching the terms of this Injunction Order may lead to proceedings being issued for contempt of Court. You should therefore read the contents of the Injunction Order and ensure that you comply with the terms of the Injunction…”

1. 1. When cross-examined by Mr Underwood QC, Mr Manning confirmed that he did not read the documents that he was instructed to place on display on the noticeboard. He just followed his instructions to place them there. Each document was displayed in a plastic envelope attached to the board. The noticeboard was contained in a locked glass-fronted cabinet so that the documents could not be removed. Mr Manning confirmed that only the first page of the 29 April Letter was displayed.

1. 1. In addition to the CCTV footage (see [25] above), a recording from a security officer’s body-worn camera was played at the hearing. This did have an audio track, but it is very difficult to decipher what was being said because largely it was drowned out by the protestors’ shouting. The Claimants put to Ms McGivern that she could be heard saying to the security officer, “I want to know if you think I’m legal standing here?” Ms McGivern thought that she had asked whether it was “okay” for her to be standing there. What is confirmed by the body-worn footage is that the security officer was walking by the side of the two vehicles as they were attempting to leave the Wyton Site and Ms McGivern can be seen to be speaking to the security officer on each occasion when the car comes to a stop. After the Nissan Juke reverses back inside the site, the security officer can be seen to go stand at the open window of one of the buildings.

1. 1. Ms McGivern gave evidence in her defence at the hearing. She was cross-examined, in total, for over a day. The length of the cross-examination was largely a result of its repetitive nature; several questions were long, or hypothetical, or both. I only made limited interventions. Ms McGivern, given her position as a criminal advocate, was not prejudiced in giving her evidence by the objectionable form of many of the questions she was asked. Ms McGivern gave clear answers to all proper questions asked of her. Just before lunch on the first day, after Ms McGivern had been cross-examined for over an hour, I did intervene to suggest to Ms Bolton that questions that began “If…” were unlikely to assist me because they were only likely to elicit Ms McGivern’s comment on a hypothetical scenario.

1. 1. Several themes emerged from Ms Bolton’s cross-examination.

i) The primary case, advanced on behalf of the Claimants, was that Ms McGivern had, by reason of reading the copy of the Injunction on PC Shailes’ laptop at Cambridge Magistrates’ Court, actual knowledge of the terms of the Injunction. Therefore, her actions on 4 May 2022 were deliberate and “flagrant” breaches of the Injunction showing a “wanton disregard” for its terms. It was put to Ms McGivern, in terms by Ms Bolton, that, by standing in front of the vehicles, she was “defying the injunction“.

ii) A secondary case emerged during the course of the cross-examination. That was that Ms McGivern, as a result of her discussions with the protestors at the site on 4 May 2022, and given that she was a solicitor, must have realised, before she obstructed the vehicles and committed the other alleged breaches of the injunction, that there was an injunction in place and therefore she had actual knowledge of its terms.

iii) Finally, Ms Bolton pursued a line of questions which, it appeared, was designed to support an argument that Ms McGivern had constructive knowledge of the terms of the injunction. The contention being that, even if she had not learned the actual terms of the injunction through discussion with the protestors, Ms McGivern must have realised that there was an injunction in place, and she recklessly failed to inform herself of the terms by neglecting to go to the noticeboard where a copy of the Injunction was displayed.

1. Contrary to the claim made at the hearing on 20 June 2022, Ms Bolton did not suggest to Ms McGivern that she was acting as a protestor on 4 May 2022. However, Ms Bolton did take up time in cross-examination reviewing with Ms McGivern her Facebook account and “friends” on that platform. The only purpose of this cross-examination was to attempt to suggest that Ms McGivern was herself supportive of the protestors and therefore willing to breach the terms of the Injunction.

THE CLAIMANT’S FAILURE TO COMPLY

1. 1. The first of these grounds needs some further explanation. Mr Underwood’s argument is as follows:

i) The requirements for alternative service of the injunction order were set out in Paragraph 7 of the order (see [17] above).

ii) Materially, this required the Claimants to display the Injunction and a letter which explained to the “Persons Unknown” defendants that they could access copies of the evidence in support of the injunction application, the skeleton argument, and a note of the hearing at a designated website address.

iii) The Claimants have failed to comply with these requirements because:

(a) (as confirmed by Mr Manning’s evidence – see [58] above) only the first page of the covering letter was displayed;

(b) the letter, in any event, did not explain that copies of the evidence in support of the injunction application, the skeleton argument and a note of the hearing could be obtained from the designated website address; and

(c) the Dropbox address provided in the letter was not the Dropbox address that had been stated in the Order.

iv) The Court should require strict compliance with these requirements – proved to the criminal standard – because it is by this process that the Court deems that the relevant person has properly been given notice of the injunction order.

1. 1. Ms Bolton argues, in response, that Mr Manning’s evidence indicates that the full copy of the letter was provided in the box under the noticeboard.

H: Decision

1. 1. Although Mr Underwood QC’s arguments on non-compliance with the alternative service order are technical, rather than substantive, in my judgment he is correct to submit that the Court should require strict compliance with the terms of an alternative service order if that is to be relied upon, in a contempt application, as the basis on which notice of the injunction order is to be established. The requirement is to establish service or notice of the injunction order to the criminal standard. Although there appears to be some tension between Cuciurean and Barking as to the basis on which someone becomes bound by an injunction order, the Claimants have relied upon Cuciurean. As such, the Court should require strict adherence to the terms of the alternative service order. The Claimants have failed to comply with those terms for the reasons identified by Mr Underwood QC. Mr Manning’s placing of four copies of the documents in a place different from that directed by the Injunction is no answer, not least because it does not overcome the issue as to the flawed terms of the letter.

THE TOTAL LACK OF MERITS OF THE CLAIMANT’S APPLICATION IN ANY EVENT

1. This decision alone would lead to the dismissal of the contempt application. However, in case I were to be wrong on the service point, and in fairness to Ms McGivern, I will go on to consider the application on the basis that the Claimants have proved, to the criminal standard, that Ms McGivern had been given notice of the Injunction by operation of the alternative service order.

1. 1. At the beginning of her cross-examination, Ms Bolton informed Ms McGivern that she would not be pursuing grounds 1 and 2 in the contempt application. Ms Bolton suggested that was because to do so “would take up time… that isn’t necessary”. In fact, and as was probably appreciated (albeit belatedly by the Claimants’ advisors), the first two grounds were hopeless and bound to fail. At the time of the alleged commission of the first two breaches of the Injunction, Ms McGivern had not, by her actions and operation of the Gammell principle, brought herself within the definition of any of the categories of “Persons Unknown”. It was the third alleged breach that did so. From that point onwards, she was bound by the Injunction under the Gammell principle.

1. 1. Ms McGivern has never disputed the factual allegations of what she did on 4 May 2022, or that they were a breach of the Injunction. The issue is whether she had knowledge of the terms of the injunction when she did these acts. On this, I can state my conclusions on the evidence very shortly.

1. 1. Ms McGivern was a conspicuously honest and careful witness. I accept her evidence as truthful. In particular, I accept that she was not shown, and did not consider, the Injunction on PC Shailes’ laptop at the Cambridge Magistrates’ Court on 27 April 2022. Her evidence on this point is also corroborated and supported by the hearsay evidence of Ms Morrissey and, particularly, by the timing of the arrival of the email. I accept Ms McGivern’s evidence that, by 13.41, she and Ms Morrissey had concluded their discussion about Mr Falsey’s case and Ms Morrissey had obtained instructions to offer no evidence against him. Given that the Court is likely to have begun sitting after the luncheon adjournment at around 13.30, and Mr Falsey had texted a friend at 13.50 to confirm that proceedings against him had been “dropped“, there simply is not time for the discussions (and importantly the decision making that would have been consequent on them) to have taken place. It may be that the Injunction was discussed between the officer and Ms Morrissey after it arrived at 13.41, but I find that those discussions did not include Ms McGivern.

1. 1. In that respect, I consider that PC Shailes was an honest, but mistaken witness. The reliability of PC Shailes’ recollection was undermined by (a) his mistake as to the identity of the prosecutor; (b) his mistake as to the location of the Magistrates’ Court; and (c) the fact that he had only been asked for his recollection some months after the relevant events and had made no notes. This event is unlikely to have struck PC Shailes as being important at the time. Consequently, I am satisfied that PC Shailes has simply misremembered what took place.

1. 1. I also reject the alternative bases for establishing that Ms McGivern had actual or constructive knowledge of the terms of the Injunction (see [62(ii)] and [62(iii)] above). In the absence of evidence that the Injunction has been served, constructive knowledge is insufficient to sustain liability for contempt. In those circumstances, it is a question of fact, not whether the terms of the injunction should have come to the attention of the alleged contemnor, but whether it did. The cross-examination on these points was speculative and, in places, devoid of reality, for example suggestions made about people pointing at the noticeboard and an allegation, put to Ms McGivern without any evidence to support it, that she had been discussing the Injunction with the protestors.

1. 1. At one point in her cross-examination, after Ms Bolton had put to her, again, that she had known the terms of the Injunction and, on 4 May 2022, she had been “challenging and defying it“, Ms McGivern responded, “And risking everything?“. At the end of her evidence, I asked Ms McGivern to expand on that answer. This was her response:

“It’s the claimants’ case that I did know, and it’s their case that I knew as a lawyer. So, if I had known that day that there was an injunction in place and that it would affect me as a person unknown, if I had known that attached to that injunction that there was an exclusion zone, I must surely have taken a calculated risk, if I had known that, by parking in plain sight within that exclusion zone.

It can only have been a calculated risk that a lawyer would have taken if she had known the actual facts. And here I am, this is the implication of somebody knowingly breaching an injunction, in court for contempt with all of my colleagues knowing that.

If I lose, I could lose my home. I will lose my reputation. I haven’t slept, I have barely eaten.

I might sound coherent, but I am falling apart. That is not a risk I would have knowingly taken, not for any cause in the world, particularly not a cause that I had only been made aware of less than an hour ago. I am not stupid. There are things, as Ms Bolton suggests, respectfully, that I should know as a human being. But on that day, I didn’t know there was an injunction. I would not have breached it.

I’ve spent over 30 years as a lawyer within our justice system. I am one of the fiercest fighters and protectors of this system. I think it is the single best defining feature of a civilised society. I talk to people throughout my life about the independence of the judiciary, particularly when you look at the situation in the United States of America. I am so proud to be a lawyer and to have fought for the underdog for 30-plus years. I would not have risked that.

Maybe if it’s suggested if this had been my cause for years. Maybe if I have been an animal rights protester for years. I never have been. I should have been, but I haven’t because I wasn’t — I didn’t know about the plight of these animals on 4 May, and I did not know I had breached that injunction, so help me God.”

1. 1. I have set out that answer in full, not only because I was impressed with it, but because it highlights a fundamental issue: why would Ms McGivern “risk everything” by breaching the Injunction. The consequences for her, if found to be in contempt of court, would have been career-ending. Rather faintly, Ms Bolton suggested in cross-examination that Ms McGivern was working on the basis that she would never be identified. I reject that. As Ms McGivern pointed out in her evidence, when this hypothesis was put to her, she had arrived at the scene in her own vehicle. In her closing submissions, Ms Bolton was driven to submit that, in the passage of evidence I have set out above, Ms McGivern was practising an enormous deception; it was all an act. I reject that submission.

1. 1. Before leaving this issue, I need to deal with a submission that Ms Bolton made to me to the effect that I was bound to accept PC Shailes’ evidence, and to reject the evidence of Ms McGivern. This was so because, she argued, Mr Underwood QC had not properly challenged the officer to the effect that he had not shown the injunction to Ms McGivern on his laptop. Ms Bolton’s submission even went so far as to contend that I was bound to find that Ms McGivern was a liar because of this supposed failure in the cross-examination of PC Shailes. In support of this, Ms Bolton relied upon Browne -v- Dunn (1894) 6 R 67; Markem Corporation -v- Markem Technologies Ltd [2005] EWCA 267; and Abdulrida -v- Al-Najar [2021] EWHC 398 (Ch). None of these was authority for the startling proposition advanced by Ms Bolton.

1. 1. I reject the proposition of law advanced by Ms Bolton. I am satisfied that the rule is accurately stated in Phipson on Evidence (12th edition, 2022, Sweet & Maxwell). In §12-12, the authors state (footnotes omitted):

“In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases as it does in criminal. In general the CPR does not alter that position.

This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty submitting that the evidence should be rejected. Thus where, during trial, a witness has not been challenged as inaccurate, it was not appropriate for that evidence to then be challenged in closing speeches.

However, the rule is not an inflexible one. For example, if there is a time-limit imposed by the judge on cross-examination it may not be practicable to cross-examine on every minor point, particularly where a lengthy witness statement has been served and treated as evidence-in-chief. Thus, in practice there is bound to be at least some relaxation of the rule.

Failure to put a relevant matter to a witness may be most appropriately remedied by the court permitting the recall of that witness to have the matter put to him.”

1. 1. I have also considered the Court of Appeal’s decision in Griffiths -v- TUI (UK) Ltd [2022] 1 WLR 973 which is referred to in this passage from Phipson. A point that I put to Ms Bolton in argument was that this rule was principally concerned with two things: fairness to a witness (i.e. not inviting a tribunal of fact to disbelieve his/her evidence if not challenged) and the fairness of the proceedings. It was not a rule that bound the tribunal of fact.

1. 1. In an adversarial system, an obligation falls on the party to put questions on any significant factual issue upon which that party intended to rely to any witness of his opponent who could reasonably be expected to have relevant evidence to give on the point. A failure to observe these principles does not immediately put the tribunal of fact into a straitjacket, dictating what evidence must be accepted and what must be rejected. It may be that basic fairness would compel a Judge to refuse to condemn a witness as a liar if s/he had not been given an opportunity to address the challenge to his/her honesty. But that example is stark. In most other cases, the failure to put a relevant point to a witness is likely simply to be a factor in the Court’s overall assessment of the evidence. In Griffiths -v- TUI [81], Nugee LJ said this:

“As a matter of basic principle it is the function of trial judges to evaluate all the evidence before them in reaching their conclusions on the factual issues. That includes deciding what weight should be given to the evidence. I see nothing in the authorities that suggests that that obligation to assess the evidence falls away if it is ‘uncontroverted’; uncontroverted evidence still has to be assessed to see what assistance can be derived from it, viewed in the context of the circumstances of the case as a whole. Uncontroverted evidence may be compelling, but it may not be: it may be inherently weak or unhelpful or of little weight for other reasons.”

1. 1. That is the case here. Ultimately, my duty as the Judge is to assess the evidence presented on the contempt application. In this case, the principal issue in dispute is whether Ms McGivern knew of the terms of the Injunction as a result of being permitted to review it on PC Shailes’ laptop. I accept Ms McGivern’s evidence on this. I have explained why I have not found PC Shailes’ evidence to be reliable. I am not bound to reject Ms McGivern’s evidence as a result of the cross-examination of PC Shailes. It was not Ms McGivern’s case, in cross-examination, that PC Shailes was lying. Her case was that his evidence was not reliable. It may be that strict adherence with the rule may have suggested that Mr Underwood should have put one further question in cross-examination, to the effect that PC Shailes was mistaken in his recollection, but that is as far as the point goes. Ms Bolton did not, in fact, seek permission to recall PC Shailes to have Mr Underwood put this question to him. Perhaps that was a recognition of the futility of seeking to do so.

1. 1. I accept Ms McGivern’s evidence that, when she acted as alleged on 4 May 2022, she did not know that there was an injunction or its terms. At its highest, and as a result of conversations she had with protestors at the site, Ms McGivern wanted to find out whether there was an injunction in place. She attempted to ascertain from staff of the First Claimant whether there was any such order. They did not assist her. Her inquiry of the security officer (see [60] above) is consistent with that state of mind. It does not demonstrate knowledge of the Injunction and its terms. It may be that the actions of Ms McGivern in obstructing the two vehicles were not, as she accepted, her “finest hour“, but in my judgment she was simply standing her ground in the hope that someone would come and respond to her inquiries. Objectively judged, Ms McGivern’s alleged breaches of the Injunction were all trivial. She obstructed two vehicles for probably no more than 20 seconds on each occasion. She was in the exclusion zone, and she set foot, for a very short period, on the First Claimant’s land.

1. 1. At the hearing, I asked Ms Bolton whether the Claimants’ contention was that, if I accepted Ms McGivern’s evidence as to her lack of knowledge of the Injunction, then applying Cuciurean the Court should impose no penalty. Ms Bolton agreed. If the governing principles are those set out in Cuciurean, then, based on my findings, the Court would impose no penalty on Ms McGivern, as the Claimants accept. If the law is as stated in Barking, and the Gammell principle operates only upon those who knowingly breach an injunction, then the contempt application fails. I do not need to resolve this dispute because, for the reasons set out in this judgment, I have decided simply to dismiss the contempt application.

1. 1. I have found it very difficult to understand the motive(s) behind the Claimants’ tenacious pursuit of Ms McGivern and the way that the contempt application has been pursued. First there is the delay in commencing the proceedings. Then there is the failure to send any form of letter before action to Ms McGivern giving her the opportunity to give her response. Next, the Claimants’ response to the evidence of Ms McGivern, provided first in a position statement and then in a witness statement, both verified by a statement of truth. The contempt application was pursued in the face of this evidence. The Claimants did so on a somewhat speculative basis relying upon the evidence of PC Shailes (inaccurately trailed first in the email from Mills & Reeve to the Court on 15 July 2022 – see [39] above) and which was only obtained after serving a witness summons, on the eve of the Contempt Application. Finally, the Claimants persisted in a cross-examination of Ms McGivern in which allegations of the utmost seriousness were made suggesting, not only that had she, a solicitor, had deliberately breached a court injunction, but that she had brazenly and repeatedly lied for over a day in the witness box. The evidential support for this line of cross-examination was tissue thin.

1. 1. In his skeleton argument, Mr Underwood QC submitted that the contempt application was an abuse of process. Certainly, allegations were made by some of the unrepresented Defendants that action had been taken against Ms McGivern because she was a lawyer helping some of the protestors. That would be the form of abuse of process by using proceedings for a collateral purpose. I can understand why they might suspect this, but Mr Underwood QC did not put any such suggestion to Ms Pressick when she gave evidence. I am unable to reach a conclusion as to the Claimants’ motives for pursuing Ms McGivern. All I can say is I find them very difficult to understand.

THE CLAIMANT REQUIRES PERMISSION TO BRING SIMILAR APPLICATIONS: CLEARLY NOT WHAT IT WAS HOPING FOR…

1. In my judgment this contempt application has been wholly frivolous, and it borders on vexatious. The breaches alleged were trivial or wholly technical. Apart from a technical trespass, it is difficult to identify any civil wrong that was committed by Ms McGivern. At worst, obstructing the vehicles for a short period might be regarded as provocative, but there were no aggravating features. As the Claimants must have appreciated, this was not the sort of conduct that the Injunction was ever intended to catch. The Court does not grant injunctions to parties to litigation to be used as a weapon against those perceived to be opponents. At its commencement, this contempt application was based almost entirely upon deemed notice of the terms of the Injunction by operation of the alternative service order. Once Ms McGivern had provided evidence confirmed by a statement of truth that she had no knowledge of the Injunction, the Claimants should have taken stock as to the prospect of success of the contempt application and, particularly, whether there was a real prospect of the Court imposing any sanction for the alleged breaches. Instead of doing so, the Claimants embarked on what proved to be a hopeless attempt to impeach Ms McGivern’s transparently honest evidence by witness summonsing a police officer. This was not a proportionate or even rational way to approach litigation of this seriousness

THE RESULT: THE CLAIMANT REQUIRES PERMISSION TO BRING ANY FURTHER APPLICATIONS OF A SIMILAR NATURE

1. 1. Ms Bolton’s final submission was that the Claimants were “entitled” to bring the contempt application against Ms McGivern; “entitled” to spend two days of Court time and resources pursuing an application that, on an objective assessment of the evidence, was only ever likely to end with the imposition of no penalty; and “entitled” to put a solicitor through the ordeal of a potentially career-ending contempt application and all the disruption that it has caused to Ms McGivern’s work and the impact it has had on this litigation. There is no such “entitlement”. The contempt application against Ms McGivern will be dismissed and will be certified as being totally without merit.

1. 1. CPR 23.12 provides that, where a Court dismisses an application and it considers that the application is totally without merit, the Court must go on to consider whether it is appropriate to make a civil restraint order. The rule does not expressly refer to contempt applications made under Part 81, and CPR 81 does not contain a similar provision. Equally, Part 81 does not contain any express power to strike out a contempt application, and it would be surprising if the Court were not able to utilise its powers under CPR 3.4 to strike out a contempt application that disclosed no reasonable grounds for bringing the application or a contempt application that was an abuse of the court’s process.

1. 1. Nevertheless, CPR PD 3C §2.1 provides that a limited civil restraint order can be made only where a party has made two or more applications that are totally without merit. This is the first totally without merit application made by the Claimants in these proceedings.

1. 1. The effect of a limited civil restraint order is to restrain the party made subject to it from making any further applications in the proceedings without first obtaining the permission of the Court. I asked Ms Bolton at the hearing whether the Court had jurisdiction to impose a requirement that the Claimants could only issue further contempt applications against “Persons Unknown” if they first obtained the permission of the Court. Ms Bolton initially submitted that the Court did have jurisdiction to impose such a requirement but to do so would be unfair and inappropriate. She submitted it would only be appropriate if the Claimants were found to be bringing multiple baseless contempt applications. After the lunch adjournment, Ms Bolton’s position hardened. She submitted that the Court in fact did not have jurisdiction to impose a permission requirement. She argued that CPR Part 81 provided expressly that certain types of contempt application could only be brought with the permission of the Court. Allegations of contempt based upon breach of a court injunction were not subject to that permission regime. The Court could not impose a permission requirement otherwise than in accordance with Part 81.

1. 1. For the reasons I have explained in this judgment, depending upon its terms, a “Persons Unknown” injunction can have the potential to catch in its net people that were never intended by the Court to be caught. Ms McGivern is an example, but others were discussed at the hearing, including the passing motorist who stops temporarily in outside the gates of the Wyton Site and who inadvertently obstructs a vehicle that is leaving the premises. By dint of the operation of the definition of “Persons Unknown” and the deemed notice of the terms of the Injunction under the alternative service order, that motorist, like Ms McGivern, ends up potentially having to face a contempt application. In ordinary cases, the Court might usually expect that a litigant who had obtained such an injunction would consider carefully whether it was proportionate and/or a sensible use of the Court’s and the parties’ resources for contempt proceedings to be brought against someone who had inadvertently contravened the terms of the injunction. The Claimants have demonstrated that, even with the benefit of professional advice and representation, the Court cannot rely upon them to perform that task appropriately.

1. 1. I am satisfied that the Court does have the power, ultimately as part of its case management powers to protect its processes from being abused and its resources being wasted, to impose a permission requirement. I reject the submission that the Court is powerless and must simply adjudicate upon such contempt applications that the Claimants seek to bring. “Persons Unknown” injunctions are recognised to be exceptional specifically because they have the potential to catch newcomers. I do not consider that it is an undue hardship that these Claimants should be required to satisfy the Court that a contempt application they wish to bring (a) is one that has a real prospect of success; (b) is not one that relies upon wholly technical or insubstantial breaches; and (c) is supported by evidence that the respondent had actual knowledge of the terms of the injunction before being alleged to have breached it.

1. 1. Although the conditions for the making of a limited civil restraint order are not met, the imposition of a requirement that the Claimants must obtain the permission of the Court before bringing any further contempt applications against “Persons Unknown” is not a limited civil restraint order, it restricts only this specific form of application. The Claimants will remain free to issue and pursue applications in the underlying proceedings. I am satisfied that the imposition of a targeted restriction on the Claimants’ ability to bring such contempt applications is a necessary and proportionate step to protect the Court (and the respondents to any future contempt applications) from proceedings that have no real prospect of success and/or serve no legitimate purpose.

1. I will therefore make an order requiring the Claimants to obtain the permission of the Court before they bring any further contempt application against anyone alleged to be in the category of “Persons Unknown” and to have breached the Injunction.