England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION

		FC3/99/7467 & 7583 & 7611 Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday, 25 November 1999

LORD JUSTICE STUART-SMITH:

1. Factual Background

Monsanto plc, the claimants in the action and appellants in this court, are a substantial company, being a subsidiary of a United States' parent. Its business includes plant biotechnology; this involves research into and development of genetically modified plants and crops (GM crops). This business is carried on at a number of sites throughout the United Kingdom. Only one such site, that known as PBIC Trumpington, is owned by Monsanto. The rest are owned by the farmers in question, the crop being grown under a form of agreement with Monsanto.

2. Monsanto is licensed by the Department of the Environment (DETR) to carry out the research and development by conducting trials at licensed sites. These sites are a matter of public record. The DETR maintains a register of sites and this is also available on its website. The sites change from year to year and the register has to be updated accordingly. There is now no dispute that Monsanto are lawfully conducting their business of producing GM crops in accordance with the terms of the licences.
3. In about June 1998 a number of people founded GenetiX Snowball (GXS). These included the first six defendants and probably also the 10th defendant. GXS is an unincorporated association. The object of GXS is to campaign against GM plants and crops and those, like Monsanto, who are engaged in their research, development and production, to the end that in the first instance the Government should impose a five year moratorium on the growth of GM crops in Britain except in an enclosed environment from which there cannot be an escape of genetic material or pollen and eventually a banning of all such crops so that those who produce them must destroy them.
4. Paragraph 2 of the Defendant's Defence provided a summary of the views of the defendants and GXS in relation to GM crops and genetic engineering technology as having unpredictable effects, being unsafe and/or harmful for humans and ecology and because it is irreversible. It is said that the growing of GM crops and plants:

(a) permits the transfer of genes between totally unrelated organisms circumventing natural species barriers and permits the random incorporation of these genes into a plant's own DNA with results which include unpredictable side effects;

(b) exposes humans to unpredictable toxic and allergenic effects;

(c) greatly enhances the potential for the creation of new and more virulent viruses;

(d) is linked to increased and extended use of harmful chemicals, such as herbicides, and the increased creation of monocultures all of which are detrimental to land and water ecology, have a detrimental impact on food security and create a public health risk through contamination of food and pollution of air, land and water courses;

(e) by the incorporation of antibiotic resistant genes into GM plants, increases the risk of exposure of humans and animals to antibiotic resistant bacterial pathogens;

(f) allows or risks cross-pollination with non-GM plants thereby creating plants with the same or similar characteristics as the GM plants, including herbicide resistant weeds and crops and other unpredictable and potentially dangerous results which endanger ecology and cause harm to crops belonging to other farmers;

(g) risks horizontal gene transfer from GM plants to soil and water borne bacteria;

(h) through the system of patenting, undermines the autonomy of farmers and takes ownership, out of common and into corporate ownership often by pirating locally developed knowledge and genetic resources.

5. There is no reason to doubt that these views are genuinely and sincerely held. The third, fourth and fifth defendants, who were unrepresented, all elaborated their views eloquently and at some length. They assert, and it may well be true, that they are views shared by many others. There is nothing whatever unlawful in trying to persuade others and particularly the Government of the rightness of their views provided they do not employ unlawful means to do so, and provided they do not incite others to use unlawful means, such that they are liable in tort to Monsanto.
6. The problem is that the central method of advancing GXS' campaign is by what is somewhat euphemistically called 'non-violent action' of pulling up the GM crops. GXS issue a 'Handbook for Action'. This is issued to those who ask for it for a price of £3.50. It runs to some one hundred pages and amongst other things describes how an attack on a particular site where GM crops are growing is to be carried out. All farmers who grow the crops and all those like Monsanto who are responsible for their development are told of the campaign and that the crops are liable to attack; but they do not know when or where it will take place. One of the essential elements of the campaign is publicity; care therefore is taken to alert the press in advance that such an action will take place; they are invited to attend a rendezvous from where they are led to the site of the attack, where it is hoped that they will photograph and publicise the uprooting of the crops and any measures taken by the police to restrain those doing so.
7. Hitherto each person taking part in such an action has undertaken not to uproot more than 100 plants; but there is some indication in recent press releases that this limit is to be abolished.
8. The first such attack occurred on Saturday 4 July 1998 at a farm at Shirburn in Oxfordshire. The first six defendants attended and defendants one to five pulled up varying numbers of plants up to 100 each. The 6th defendant was present as media liaison officer, supporting the action of the other defendants in such a manner that Monsanto claim that he is a joint tortfeasor with the others, although he did not actually pull up any plants. His liability as a joint tortfeasor is disputed.
9. The Litigation

Monsanto issued a writ endorsed with a Statement of Claim against the first five defendants on 15 July 1998, complaining of the action at Shirburn and seeking injunctive relief. An interlocutory injunction was granted on the next day by Jowitt J.; this was continued after an inter partes hearing on 30 July. On 18 September Monsanto issued a second writ; the 6th defendant was joined as a defendant, and all six defendants were sued as representatives of GXS. In due course a Statement of Claim and collective Defence were served and an order consolidating the two actions made; the interlocutory injunctions were made in the consolidated action.

10. On 21 January 1999 Monsanto issued a summons under RSC Order 14 for summary judgment seeking to make permanent the interlocutory injunction on the grounds that there was no defence to the claim. The summons came on for hearing before Klevan J. on 19/20 April 1999. He gave all defendants unconditional leave to defend and refused permission to appeal. That permission was granted on 6 July 1999 by the Rt. Hon. Sir Anthony McCowan.
11. Meanwhile on 15 June 1999 the seventh to tenth defendants carried out similar attacks on Monsanto's 'Wendy' site at an agricultural trade show known as 'Cereals 99'. On 28 July Burton J. held that the seventh to tenth defendants were in contempt of court for breach of the interlocutory injunction. He ordered that they be joined as defendants in the action. They have taken no part in the appeal.
12. Issues raised in the Appeal

The following issues arise for determination in the appeal:

(i) Whether the judge gave any or any sufficient reasons for his decision; and if he did not, what if any effect that has on the appeal.

(ii) Whether Monsanto had sufficient interest in the land where the GM crops grow or in the crops themselves to maintain an action for trespass to land or trespass to goods, being wrongful interference with goods.

(iii) Whether the respondents have an arguable defence to a claim in trespass to land or goods that their actions are justified as being necessary to protect third parties or in the public interest.

(iv) Whether the respondents are properly sued in a representative action.

(v) Whether the 6th defendant has an arguable defence that he is not a joint tortfeasor in the tort of trespass to land or goods.

13. Did the judge give adequate reasons for the decision? It is now well-established that as a rule a professional judge must give reasons for his decision. In Capital and Suburban Properties v Swycher [1976] Ch 319 CA Buckley LJ at p325H said:

"The judge unfortunately gave no reasons for his decision. This I consider a most unsatisfactory practice. There are some sorts of interlocutory applications, mainly of a purely procedural kind, upon which a judge exercising his discretion on some such question as whether a matter should be expedited or adjourned or extra time should be allowed for a party to take some procedural step, or possibly whether relief by way of injunction should be granted or refused, can properly make an order without giving reasons. This being an application involving questions of law, is in my opinion clearly not such a case. Litigants are entitled to know on what grounds their cases are decided. It is of importance that the legal profession should know on what grounds cases are decided, particularly when questions of law are involved. And this court is entitled to the assistance of the judge of first instance by an explicit statement of his reasons for deciding as he did."

To the same effect is Eagil Trust Co Ltd v Pigott-Brown [1985] 3 AER 119 CA per Griffiths LJ at p122 and Flannery and another v Halifax Estate Agencies Ltd The Times 4 March 1999 CA.

Mr Gordon QC, on behalf of the 1st, 2nd and 6th respondents, submitted that in giving leave to defend on a summons under RSC Order 14 or now in refusing summary judgment under CPR pt 24 the judge is not obliged to give reasons. It was, he said, an exception to the general rule and he likened it to the grant of permission to appeal granted either by the judge at first instance or by a single Lord Justice on paper or to the grant of permission to apply for judicial review. Mr Gordon cited no authority for this proposition and I know of none. Moreover, in my judgment the analogy is not sound. In granting permission to appeal, as opposed to refusing it, a judge need not give reasons; what he is saying is that the grounds of appeal, or in the case of the judge at first instance the argument that has been advanced, are arguable with a reasonable prospect of success. So too in granting permission to apply for judicial review, the judge indicates that the grounds put forward in the Form 86A are properly arguable. He need do no more. If the judge in either situation considers that some grounds are not properly arguable he should say so, and he must give his reasons, albeit briefly, but sufficiently for the party affected to know the reasons and challenge them if need be.

14. Did the judge give adequate reasons? The judge listened to argument for the best part of two days. He said that summary judgment was not appropriate where questions of law or construction arose which might take days to argue. He referred to the provisions of Order 14 rule 3. He then said that he was satisfied that the plaintiff's application came within the rule and that the preliminary requirements had been made out. It was for the defendants to show cause why judgment should not be given against them.

He then referred to the defendants' submissions that the ingredients of the torts then relied upon, namely wrongful interference or trespass to goods, interference with business and conspiracy to injure, had not been made out and that they had raised a defence of justification in the public interest and cited a passage from Clerk and Lindsell on Torts 17th Ed. paragraphs 1-46. He then stated that the claimants did not accept that an arguable defence of justification would arise. The judge then expressed his conclusion as follows:

"Without going further into the many matters that have been raised in full argument I am persuaded that the defendants have shown cause why final judgment should not be given against them today.

The area of the representative action is one area that causes me a little concern, and the area of justification. Whilst I might form a view, that is not the test. The test is whether legitimate arguments have been raised and should be canvassed at a full hearing. I am just persuaded without saying more on the other areas that have been raised that the defendants should be allowed to have the full trial and not be prevented by a final order today."

15. This hardly does justice to the arguments raised and canvassed at some length. I find it difficult to know whether the judge thought that complex and difficult questions of law arose which were unsuitable for summary judgment, whether the claimants had not made out the ingredients of the torts or whether his "areas of a little concern" on the issue of justification or representative action were sufficient to justify granting unconditional leave to defend. It is difficult to see how the question of representative action should prevent summary judgment being given against the defendants in their personal capacities, if this was otherwise warranted.
16. Mr Gordon drew our attention to two or three short passages in the transcript of the argument and submitted that they clarified the judge's reasons. For my part I do not think they assist at all. In any event it is doubtful whether a point made by the judge in argument should be imported into the judgment without some express reference.
17. Mr Gordon is on firmer ground when he submits that for all practical purposes it does not now greatly matter whether the judge has given proper reasons or not. There is no question of a retrial or remission to the judge. This court is seized of the matter and can make up its own mind. If there were any question of the judge exercising his discretion, failure to give proper reasons would be material and the court would not have to exercise the same restraint that we show when interfering with judicial discretion. But I do not think that arises here. The only problem is that this court does not have the advantage of a reasoned judgment and the respondents do not have that benefit either.
18. One further point should be made at this stage. Before the judge Monsanto had contended that the defendants' actions constituted three different torts, namely trespass to goods, interference with business and conspiracy to injure. Neither of the two latter torts are particularly straightforward and can be regarded as in a developing field of the law. There might be more scope for a public interest defence; it may have been this factor which influenced the judge. But if Monsanto are entitled to succeed in trespass, then it is unnecessary to consider whether they can also succeed in these more esoteric torts. Monsanto are not seeking damages, which might vary according to which tort is established. In this court Mr Lyndon-Stanford QC, with some encouragement from the court, wisely confined his case to trespass.
19. Some questions arose in the course of argument as to whether the court should apply the Order 14 test or that under CPR 24.2(a)(ii) 'that the defendant has no real prospect of successfully defending the claim or issue'.

I do not consider that it makes any practical difference in this case. But the court should adopt the test in CPR pt 24 which gives somewhat wider scope for dismissing an action or defence. As Lord Woolf MR said in Swain v T. Hillman (male) & TC Gray CA transcript 21 October 1999 at p4:

"Under Part 24.2, the court now has a very salutary power, both to be exercised in a claimant's favour or, where appropriate, in a defendant's favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words "no real prospect of being successful or succeeding" do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or, as Mr Bidder submits, they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success."

20. Do Monsanto have a sufficient interest in the crop to be able to maintain an action for trespass either to land or goods? Hitherto Monsanto have based their case on interference with or trespass to goods. And in the early stages of the argument in this court Mr Lyndon-Stanford concentrated on this cause of action. However, it is apparent that the facts pleaded could also give rise to an action for trespass to land, even in those cases, which are the majority, where Monsanto do not own the land. And in the light of the authorities to which I will refer, Mr Lyndon-Stanford sought to extend the claim to trespass to land. Mr Gordon conceded that Monsanto had a sufficient interest to maintain an action for trespass to goods; and he did not seriously contest the claim on the basis of trespass to land. However, since the 3rd, 4th and 5th defendants were not bound by the concession, and because it may affect those in future who seek to take similar action to the defendants, this court must be satisfied that Monsanto do have a sufficient interest. I am so satisfied.
21. The clearest statement of the law is to be found in the judgment of Scrutton LJ in Back v Daniels [1925] 1 KB 526, 542:

"Now it is clear that at common law, for the same land, though hardly for the same portion of it, two persons may be in possession at the same time, and each can bring trespass. In the case of a grant by the owner of the soil of the right to herbage, vestura terrae, or growing crops, the owner can bring trespass for damage to his right to the soil; the person having a right to the herbage for damage to the herbage or crops; but neither could bring trespass for the damage to the other's right."

So too in Wellaway v Courtier [1918] 1 KB 200 the purchaser of a crop of turnips growing on a third party's land was entitled to maintain an action for trespass to land in respect of the damage to the turnips done by the defendant's sheep.

22. Ordinarily growing crops do not become goods until they are severed from the land. Once they are so severed the owner of the crop can maintain an action for wrongful interference with the goods. The defendant's actions in uprooting the crop amounted to severance, and therefore an action for trespass to goods will lie. For practical purposes it makes little difference in this case whether the tort is trespass to land or goods, though in my opinion it should properly be regarded as trespass to land which affords Monsanto somewhat wider protection, for example in relation to a poisoning of the crop without uprooting.
23. The arrangements between the farmer and Monsanto are governed by a standard form of agreement. It is unnecessary to set it out at length. The seed is the property of Monsanto; the drilling, spraying and co-ordination of the trial is done by Monsanto's contractor. More importantly it is provided that 'the crop resulting from the tests are all the property of Monsanto'. This is clearly sufficient to enable Monsanto to maintain the action for trespass both on sites which they do not own as well as those they do.
24. Do the respondents have an arguable defence of justification in the public interest? The pleading of this defence is exigious and lacking in particularity. In paragraph 7 of the Defence it is said that 'the acts of the defendants were necessary to protect third parties and their property and/or were in the public interest'. Under pressure from the court to define the nature of the necessity and the public interest, Mr Gordon relied on the matters pleaded in paragraph 2 of the Defence (set out in para. 4 above). He submitted that the question for the court was - do the dangers set out in paragraph 2 of the Defence constitute a real danger to the public so as to justify in law the actions of the defendants? Further analysis showed that the defendants were claiming to protect those in the vicinity of the crops, such as organic farmers whose crops might be cross-pollinated, thereby losing their organic status and organic bee-keepers who would be similarly affected if their bees sucked the GM crops. But they were also claiming to protect the wider public. Indeed the three respondents who appeared in person are convinced that the crops present a danger to mankind in general and farmers in the Third World in particular.
25. Furthermore it is apparent that the respondents are seeking to justify their actions by averting the dangers referred to in two different and, as it seems to me, inconsistent ways. First it is said that they are entitled to protect those in the vicinity from immediate danger by uprooting the crops. If this is really so, then it is clear that the whole crop must be eradicated, since nothing less will achieve its purpose. But this is not what is happening and it is the essence of the GXS campaign that the uprooting is symbolic and only a relatively small number of plants are to be uprooted. This is because the real purpose of the campaign, as it is perfectly apparent from a perusal of the Handbook, is to attract publicity to the cause. The defendants are frustrated that they have been unable to change government policy by the strengths of their arguments. It is the breaking of the law, with its potential for martyrdom which affords far better publicity than any other. Indeed I think this is the real answer to the question which the court posed to Mr Gordon, why do the defendants need to break the law to obtain publicity? It seems to be implicit in GXS method of operating that they cannot attract sufficient attention to their cause without breaking the law. It would in my judgment be an astonishing proposition if the law were to recognise this as justification for law breaking. Many people have strong views about what they perceive to be dangerous or unacceptable; in some cases their perceptions are widely shared, in others not; they try and influence government into making illegal and criminal their particular object of dislike or fear. There are campaigns against disposal of nuclear waste, smoking, alcohol, motorcars, abortion, experiments on animals, hunting, the use of animal skins for clothing, to mention but a few.
26. The respondents are anxious to have a full trial at which they desire to call experts who will support the various dangers alleged to exist. If they do establish them, presumably on a balance of probability, then it is said their actions are justified. But a moment's reflection shows that the issue is incapable of being tried in a court with our adversarial system of justice. Moreover, Mr Gordon submitted that it would be necessary for the court to conduct some sort of balancing exercise to see whether the law breaking in question was proportionate to the danger. Thus pulling up a number of GM plants might be justified, but blowing up Monsanto's chemical plant might not. It seems to me that if this really is the law, the law would be setting itself a task which no court could possibly answer nor could the outcome of the case possibly be predicted by lawyers. So that it would be impossible to advise in any case whether the defence of justification would succeed. The truth is in my judgment that the respondents wish to have the benefit of advancing their views in the forum of the court, with all its attendant publicity, not because it can amount to a defence, but because it is an admirable opportunity to proselytise their views.
27. Mr Gordon submits that:

(i) a plea of justification of acting in the public interest to avert danger is known to the law as a defence to an action in trespass.

(ii) the situations in which the defence is available are not confined to emergency, actual and obvious danger or immediate necessity.

(iii) a defendant can act to protect the person or property of a third party.

(iv) that the parameters of the defence are not yet defined and the court should not decide the case on summary trial until the acts are established and the balancing exercise to which I have referred in paragraph 26 can be carried out.

28. In support of the first three of these propositions Mr Gordon relied on the speech of Lord Goff of Chieveley in Re F (Mental Patient) [1990] 2 AC 1. That case was concerned with what should happen where an adult was unable through unconsciousness or mental incapacity to give consent to an operation, in that instance sterilisation, which was considered to be in the best interest of the patient. The House of Lords held that the lawfulness of the operation depended on whether the treatment was in the best interest of the patient, and the test for judging whether it was, was the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). The case is a long way from the present, since Monsanto are able to give or withhold consent to trespass and it is inconceivable that they would consider it in their best interests to consent.
29. Mr Gordon relies on Lord Goff's analysis at p73H:

"Upon what principle can medical treatment be justified when given without consent? We are searching for a principle upon which, in limited circumstances, recognition may be given to a need, in the interests of the patient, that treatment should be given to him in circumstances where he is (temporarily or permanently) disabled from consenting to it. It is this criterion of a need which points to the principle of necessity as providing justification.

That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt. But historically the principle has been seen to be restricted to two groups of cases, which have been called cases of public necessity and cases of private necessity. The former occurred when a man interfered with another man's property in the public interest - for example (in the days before we could dial 999 for the fire brigade) the destruction of another man's house to prevent the spread of a catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter cases occurred when a man interfered with another man's property to save his own person or property from imminent danger - for example, when he entered upon his neighbour's land without his consent, in order to prevent the spread of fire onto his own land.

There is, however, a third group of cases, which is also properly described as founded upon the principle of necessity and which is more pertinent to the resolution of the problem in the present case. These cases are concerned with action taken as a matter of necessity to assist another person without his consent. To give a simple example, a man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby saving him from injury or even death, commits no wrong. But there are many emanations of this principle to be found scattered through the books. These are concerned not only with the preservation of the life or health of the assisted person, but also with the preservation of his property ( sometimes an animal, sometimes an ordinary chattel) and even with certain conduct on his behalf in the administration of his affairs. Where there is a pre-existing relationship between the parties, the intervenor is usually said to act as an agent of necessity on behalf of the principal in whose interests he acts, and his action can often, with not too much artificiality, be referred to the pre-existing relationship between them. Whether the intervenor may be entitled either to reimbursement or to remuneration raises separate questions which are not relevant in the present case.

We are concerned here with action taken to preserve the life, health or well-being of another who is unable to consent to it. Such action is sometimes said to be justified as arising from an emergency; in Prosser and Keeton, Handbook on Torts, 5th ed. (1984), p117 the action is said to be privileged by the emergency. Doubtless, in the case of a person of sound mind, there will ordinarily have to be an emergency before such action taken without consent can be lawful; for otherwise there would be an opportunity to communicate with the assisted person and to seek his consent. But this is not always so; and indeed the historical origins of the principle of necessity do not point to emergency as such as providing the criterion of lawful intervention without consent. The old Roman doctrine of negotiorum gestio presupposed not so much an emergency as a prolonged absence of the dominus from home as justifying intervention by the gestor to administer his affairs. The most ancient group of cases in the common law, concerned with action taken by the master of a ship in distant parts in the interests of the shipowner, likewise found its origin in the difficulty of communication with the owner over a prolonged period of time - a difficulty overcome today by modern means of communication. In those cases, it was said that there had to be an emergency before the master could act as agent of necessity; though the emergency could well be of some duration. But when a person is rendered incapable of communication either permanently or over a considerable period of time (through illness or accident or mental disdorder), it would be an unusual use of language to describe the case as one of "permanent emergency" - if indeed such a state of affairs can properly be said to exist. In truth, the relevance of an emergency is that it may give rise to a necessity to act in the interests of the assisted person, without first obtaining his consent. Emergency is however not the criterion or even a prerequisite; it is simply a frequent origin of the necessity which impels intervention. The principle is one of necessity, not of emergency."

30. I cite this whole passage although Mr Gordon relied only on the second and final paragraphs. I would make a number of observations on the passage. First I doubt whether the reference to the right to destroy neighbouring houses in event of serious fire can be regarded as any longer correct. In Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 at p164G Lord Upjohn, after referring to the supposed right and the cases where commanders of ships had scuttled them to avoid them falling into enemy hands, said:

"No doubt in earlier times the individual had some such rights of self-help or destruction in immediate emergency, whether caused by enemy action or by fire, and the legal answer was that he could not in such circumstances be sued for trespass on or destruction of his neighbour's property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour's house to prevent the fire spreading to his own; he would be told that he ought to have dialled 999 and summoned the local fire brigade. No man now could conceivably erect a bulwark to prevent enemy invasion."

That case was concerned with whether the Crown in the exercise of the royal prerogative could confiscate and destroy property in the dire emergency of war to prevent it falling into enemy hands without paying compensation. It was held that they could not. If that is correct, it strongly suggests that the individual has no right to destroy the property of another in the public interest in the sense of protecting others from danger, save in very restricted circumstances; still less that he may do so to attract publicity to what is alleged to be a good cause or to persuade government to legislate against a perceived danger.

31. The third and fourth paragraphs of the passage cited from Lord Goff's speech are concerned with action which is for the benefit of the person who for one reason or another is incapable of giving consent. That is what the case was concerned with. It is to be noted that Lord Goff says that in the case of a person of sound mind there will ordinarily have to be an emergency, since otherwise there is an opportunity to communicate with him.
32. Mr Gordon also referred the court to two cases involving shooting dogs worrying sheep. In Cresswell v Sirl [1948] 1 KB 241 it was held that in order to justify shooting the dog it must be shown that the sheep were in real or imminent danger and any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to shooting the dog if the sheep were to be preserved. In that case the sheep were owned by the defendant's father.

Workman v Cooper [1961] 2 QB 143 was a criminal case, the defendant being charged with malicious damage. He shot a stray fox-hound which had run wild and presented a danger to lambs in the vicinity. It was held that the same test as that laid down in Cresswell's case applied when considering whether the defendant had a lawful excuse in protecting the property of others.

33. Those cases show that the danger must be immediate and obvious and that a reasonable person would conclude that there was no alternative to the act of trespass. A case which further illustrates the extremely circumscribed extent of the defence of justification by necessity is Southwark Borough Council v Williams [1971] 1 Ch 734. The defendants were in dire need of housing accommodation; in order to satisfy this need they entered empty houses belonging to the council. It was held that the defence of necessity did not justify their entry to the premises. The proceedings were brought for possession and were treated as if the claim was for summary judgment under RSC Order 113. At p743F Lord Denning MR said:

"I will next consider the defence of "necessity". There is authority for saying that in case of great and imminent danger, in order to preserve life, the law will permit of an encroachment on private property. That is shown by Mouse's Case (1609) 12 Co. Rep. 63, where the ferryman at Gravesend took 47 passengers into his barge to carry them to London. A great tempest arose and all were in danger. Mouse was one of the passengers. The defendant threw a casket belonging to the plaintiff (Mouse) overboard so as to lighten the ship. Other passengers threw other things. It was proved that, if they had not done so, the passengers would have been drowned. It was held by the whole court "that in case of necessity, for the saving of the lives of the passengers it was lawful for the defendant, being a passenger, to cast the casket of the plaintiff out of the barges..." The court said it was like the pulling down of a house, in time of fire, to stop it spreading; which has always been held justified pro bono publico.

The doctrine so enunciated must, however, be carefully circumscribed. Else necessity would open the door to many an excuse. It was for this reason that it was not admitted in Reg. v Dudley and Stephens (1884) 14 QBD 273, where the three shipwrecked sailors, in extreme despair, killed the cabin boy and ate him to save their own lives. They were held guilty of murder. The killing was not justified by necessity. Similarly, when a man, who is starving, enters a house and takes food in order to keep himself alive. Our English law does not admit the defence of necessity. It holds him guilty of larceny. Lord Hale said that "if a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, and animo furandi, steal another man's food, it is felony.....": Hale, Pleas of Crown, I. 54. The reason is because, if hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry. Each man would say his need was greater than the next man's. The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good."

At p745H Edmund Davies LJ said:

"But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions, and that is that the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear - necessity can very easily become simply a mask for anarchy. As far as my reading goes, it appears that all the cases where a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril: for example, the forcible feeding of an obdurate suffragette, as in Leigh v Gladstone (1909) 26 TLR 139, 142, where Lord Alverstone CJ spoke of preserving the health and lives of the prisoners who were in the custody of the Crown; or performing an abortion to avert a grave threat to the life, or, at least, to the health of a pregnant young girl who had been ravished in circumstances of great brutality, as in Rex v Bourne [1939] 1 KB 687; or as in the case tried in 1500 where it was said in argument that a person may escape from a burning gaol notwithstanding a statute making prison-breach a felony, "for he is not to be hanged because he would not stay to be burnt". Such cases illustrate the very narrow limits with which the plea of necessity may be invoked. Sad though the circumstances disclosed by these appeals undoubtedly are, they do not in my judgment constitute the sort of emergency to which the plea applies."

Megaw LJ at p747 said:

"But in the end it is a matter of policy, and I have no doubt that the squatting association are firmly convinced that the policy which they urge and which they would wish to see adopted is indeed the one which is best not only for the members of their association, but for the community as a whole. I have no doubt that the borough council also are convinced that the policy which they have adopted is that which is best for their borough as a whole. It is a matter of policy in the widest sense of the word - a political matter. The borough council are an elected body in a democrartic society. If their policy - the policy which they prefer in a matter in which policy-making was for them - is not that which is accepted by the community as a whole, then the community has its remedy in a democratic society. But what is suggested here is that individuals have the right in law to take steps to go upon the property of the borough council in such a way and with the intention and necessary result of defeating the policy which that elected body has decided to be the appropriate policy. In my judgment the doctrine of necessity in this country does not go so far, or anything like so far, as to say that those who take such a step in such circumstances are not committing an offence against the law, or that when they go upon property of another they are not trespassing."

34. Megaw LJ's judgment is of particular interest because he refers to the conflicting principles of the Council and the Squatters' Association. This is particularly pertinent here where the object of the respondent's campaign is to change government policy. In a democratic society that must be effected by lawful and not unlawful means. Those who suffer infringement of their lawful rights are entitled to the protection of the law; if others deliberately infringe those rights in order to attract publicity to their cause, however sincerely they believe in its correctness, they must bear the consequences of their lawbreaking. This is fundamental to the rule of law in a civilised and democratic society.
35. As Mummery LJ pointed out in the course of argument, if the respondents wish to challenge the legality of the licences granted by the DETR, they must do so, if at all through judicial review. I must not be taken to encourage such a course because the respondents would have to discharge the very considerable burden of showing that the grant of the licences was perverse in the Wednesbury sense.
36. For the fourth proposition which I have referred to in paragraph 27 Mr Gordon relied on the recent decision of Barrett v Enfield Borough Council [1999] 3 AER 193. In that case the question was whether the local authority owed a duty of care to the appellant who had been in their care nearly all his life until he was 17. The Court of Appeal upheld the judge's decision to strike out the claim as disclosing no cause of action inter alia on the basis that it would be contrary to public policy to impose such a duty; in other words it was not fair, just and reasonable to impose such a duty and therefore the three stage test laid down in Caparo Industries plc v Dickman [1990] 2 AC 605 was not satisfied. In the light of the decision of the European Court of Human Rights in Osman v UK [1998] EHRC 293 the House of Lords held that the claim could not be struck out on this basis; it was necessary in order that a balance could be struck between the public interest and the private rights of the claimant for the facts to be explored and determined at trial. Mr Gordon's submission is that by parity of reasoning the court should not dismiss the respondents' public interest defence until the facts have been determined. As I understand it he also derives his proposition that the court's task is one of balancing the public interest against the harm done by the respondents to Monsanto from this case.
37. I cannot accept Mr Gordon's submission. If it is part of our jurisprudence that summary judgment should be given in favour of a claimant where there is no triable issue or no other reason why there should be a trial (Order 14) or the defendant has no real prospect of successfully defending the claim (CPR 24.2), the court should not hesitate to do so where it can see that this is the position. This is particularly so where, having regard to the overriding objectives of the rules, if the case were to proceed to trial it would be inordinately expensive and involve issues which, in my judgment, are not justiciable. I have no doubt whatever that the matters relied upon by the respondent are not capable of affording a defence in law. Any amount of argument or development by expert evidence or otherwise would be to no avail.
38. The representative action

RSC Order 15 r12(1) provides:

"Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them."

Although an order of the court is binding on those whom the defendants in a representative action represent, the order cannot be enforced without the leave of the court against such persons. See Order 15 r 12(3)(4) & (5). The same rule is incorporated in the Civil Procedure Rules. In Taff Vale Railway v Amalgamated Society of Railway Servants [1901] AC 426 at p443 Lord Lindley said that the principle of bringing and defending actions as representative proceedings ought to be applied to the exigencies of modern life as occasion requires.

39. The rule was considered in M. Michael (Furriers) Ltd v Askew and others CA Transcript 23 June 1983. Dunn LJ made these observations in the course of his judgment:

".....the rule should not be limited to certain defined categories of case,...it should be applied flexibly to situations as they developed in order to achieve justice.

The application of the rule is a matter of practical convenience to enable the Plaintiff's rights to be tried fairly and in order to obtain an effective remedy.

Care must be taken that the rule is not abused. But where a number of unidentified persons are causing injury and damage by unlawful acts of one kind or another, and there is an arguable case that they belong to a single organisation or class which encourages action of the type complained of, and their actions can be linked to that organisation, then the rule enables the Court to do justice in the particular case. The narrower construction of the rule [O.15 r.12] advanced by Mr Warner would in my view deprive the Courts in a situation like this of a useful remedy."

Purchas LJ's judgment was to the same effect.

40. Although it is not correct to say that there are members of GXS as such, the judge was right in my view to regard it as an unincorporated association. Monsanto rely on the following features of GXS as an organisation: It is directed and managed by a co-ordinating group; it has and publicises a postal address, telephone line, facsimile number and e-mail address; it has received [and presumably dealt with] over a thousand enquiries to its office; it has a 'comprehensive' web site and a web site administrator; it has a bank account and seeks donations; it has published a 100 page handbook, priced at £3.50 and distributed 600 copies; it publishes a newsletter; it has published a video film, priced at £3.50 which has been 'well received'; it has a Press/Media Liaison; it has held over 40 public meetings; it trains people to take direct action as part of its campaign; it has undertaken a number of direct actions, the direct action has involved over 70 people; it has branches or local groups which meet regularly in Brighton, London, the South East, and branches in Scotland, Bristol and Cambridge; it acts as a co-ordinating office for proposed uprooting action by its campaigners.
41. Mr Gordon submits that it is essential in a representative action that all the parties have the same interest and in this case, he says, that all members do not. I have not followed his argument on this point. There is no question of vicarious liability on the part of the respondents for acts of others who may come hereafter and uproot Monsanto's crops. Moreover, the injunction only applies to conduct which falls within its terms; some other and different conduct involving interference with Monsanto's rights are not covered. What is important here is that it is a central tenet of GXS that action be taken by uprooting Monsanto (and others') GM crops. It is that activity which is crucial to the campaign.
42. To my mind this distinguishes this case from that of United Kingdom Nirex Ltd v Barton and others - The Times 13 October 1986. In that case the organisation was the Lincolnshire and Nottinghamshire against Nuclear Dumping with the inevitable acronym LAND. Although some of the members of the organisation were prepared to break the law, many others had no such intention , were horrified at the suggestion that they might do so, and were intent on pursuing the aims of the organisation to prevent nuclear waste disposal by entirely lawful means. There was a conflict of interest between the two groups. The law-breakers would wish to spread responsibility for their actions more widely onto those who were not prepared to break the law. The latter clearly did not wish to be associated with those who were so prepared. In these circumstances Henry J. refused to make a representative order.
43. Mr Gordon submitted that nothing is achieved in this case by making an order for a representative action, because under the principle exemplified in Attorney General v Times Newspapers Ltd [1992] 1 AC 191 (the Spycatcher case) Monsanto already have an effective remedy against other members of GXS. There is therefore no point in making injunctions against them; it adds nothing, Mr Gordon submits, to the protection Monsanto already enjoy in respect of anyone who knows of the injunction against individual defendants. But this is not so. Without the representative order other members of GXS minded to carry out similar operations in future are not bound by an injunction. Under the Spycatcher principle they will be in contempt of court only if they are jointly involved with the existing respondents in action by those respondents in breach of the injunction. But for the representative action the interim injunction in this case would not have bound defendants 7-10, since they were not acting in concert with defendants 1-6; mere knowledge of the injunction binding on others is not enough.
44. In my judgment this is quite clearly a case in which a representative order under RSC Order 15 r.12(1) should be made since otherwise Monsanto do not have adequate protection against violation of their rights. They cannot take preventive action against an attack, because they do not know when or against which of the many sites the attack may be directed. But with the representative order in place, those perpetrating a similar attack will be guilty of contempt of court provided they know of the injunction, which they can hardly fail to do.
45. Is there an arguable defence that the 6th respondent is not a joint-tortfeasor with the first five respondents? In the Koursk [1924] p140 at p155 Scrutton LJ said:

"Certain classes of persons seem clearly to be 'joint tortfeasors'.....two or more persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly to be joint tortfeasors; there is one tort committed by one of them on behalf of and in concert with another."

In Credit Lyonnais v ECGD [1998] 1 Lloyds Reports 19 at p35, I said:

"It seems to me to be well established that a person who acts with another to commit a tort in furtherance of a common design will be liable as a joint tortfeasor. It is not enough that he merely facilitates the commission of the tort unless his assistance is given in pursuance and furtherance of the common design."

The decision of the Court of Appeal in that case was upheld by the House of Lords [1999] 2 WLR 540, but the House did not find it necessary to deal with the law of joint tortfeasor beyond referring to Scrutton LJ's dictum in the Koursk with approval.

46. It seems to me to be quite plain that the 6th respondent was within this definition. He was well aware of the planned attack at Shirburn farm and reconnoitred the site the day before. He met the press at a prearranged rendezvous and led them to the site for the purpose of photographing and reporting the uprooting activities. He was present while the others uprooted the plants and he explained the purpose and significance of their acts to the media. All this can be derived from his own evidence.
47. For these reasons I would allow the appeal. The precise form of the injunction may require some amendment to the proposed order set out in the notice of appeal, since as Pill LJ pointed out during argument, the expression 'member' may not be entirely appropriate to those who would take part in uprooting action inspired by Genetix Snowball.

LORD JUSTICE PILL:

The defendants resist new genetic engineering technology on grounds set out in paragraph 2 of their defence which are said to include "that there are unpredictable effects and it is unsafe and/or harmful for humans and ecology and that it is irreversible". The pleaded particulars of the defendants' concerns are set out in the judgment of Stuart-Smith LJ and are summarised in the judgment of Mummery LJ which I have had the opportunity of reading in draft. The defendants plead that what would otherwise be trespass when GM plants are uprooted is justified because the acts of the defendants "were necessary to protect third parties and their property and/or were in the public interest".

Mr Gordon QC for the 1st, 2nd and 6th defendants submits that the question in the action is whether the dangers set out in paragraph 2 of the defence constitute a real danger to the public so as to justify in law the uprooting of plants by the defendants. The question can be sub-divided, he submits, by asking first, is there a real danger? and second how far are the defendants justified in going to defeat it?

Mr Gordon submits that when answering the question in the context of an application for summary judgment the existence of the defence of "necessity" must be acknowledged. He relies on the statement of Lord Denning MR that "there is authority for saying that in case of great and imminent danger, in order to preserve life, the law will permit of an encroachment on private property" (Southwark Borough Council v Williams [1971] Ch 734 at 743). Mr Gordon also relies on the statement of Lord Goff: "That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt" (in Re F (Mental Patient) [1992] 2 AC 1 at 73). Stuart-Smith LJ has set out the passage in full in his judgment.

It is submitted that Lord Goff has expressed the principle more widely in Re F by stating that "the principle is one of necessity, not of emergency". The case that there is a "great and imminent danger" is pleaded, Mr Gordon submits. Whether it can be made good depends on a careful examination of the facts. The boundary of the defence should not be laid down upon an application for summary judgment. I did not understand Mr Gordon to submit that because there is great public interest in a subject, requiring determination of a scientific issue, a court could for that reason alone be required to sit and rule upon it at a full trial in a trespass action. If there is such a submission, I reject it.

Reliance is also placed on the decision of the European Court of Human Rights in Osman v United Kingdom ([1998] EHRC 293), as applied by the House of Lords in Barrett v Enfield London Borough Council [1999] 3 WLR 79. In Osman, the European Court of Human Rights upheld a claim that the rights of the Osmans under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms had been infringed. Their claim against the police alleging negligence in the prevention and pursuit of crime was struck out on an application of the principle in Hill v Chief Constable of West Yorkshire [1989] AC 53 that, as a matter of public policy, the police were immune from action for negligence in respect of their activities in the investigation and suppression of crime. In Barrett, Lord Browne-Wilkinson analysed the decision in Osman in this way (p 84H):

"The Strasbourg court held that there was in the Osman case a breach of such right of access to the English court, such breach lying in the application of a blanket exclusionary rule which excludes all claims against the police for negligent failure to investigate or protect from crime. In the view of the Strasbourg court, apparently, the applicability of such exclusionary rule has to be decided afresh in each individual case. If this is not done then it is impossible to determine whether the public interest in an efficient police force is or is not proportionate to the seriousness of the harm suffered by the plaintiff in the individual case: see paragraph 150. On these grounds, the Strasbourg Court held that the English court had breached article 6 by striking out the claim made by the Osmans against the police without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The court said that the police had been granted a 'blanket immunity' which was disproportionate and therefore an unjustified restriction on the Osmans' right of access to the court."

Lord Browne-Wilkinson went on to explain the problems in applying this reasoning to the English law of negligence. He described them as "many and various". He nevertheless agreed that the action should proceed to trial so that the difficult issues of law which arose might be confronted in the light of the real facts when they are known. By a parity of reasoning, Mr Gordon submits, the defendants should be permitted to call evidence to support their pleaded case. There should be no "blanket immunity". The parties should have an opportunity to call evidence to enable the court to decide on which side of the line the case falls.

Those arguments fail in my view and for these reasons:

48. When Lord Goff stated that the principle is one of necessity not of emergency, he was not intending to restrict the need to establish an "imminent danger" in the first two groups of cases he contemplated in his analysis, that is public necessity and private necessity. The examples Lord Goff gives in those groups are both examples of fire, where the danger is imminent and obvious. Lord Goff used the broader expression when analysing the third group of cases "concerned with action taken of necessity to assist another person without his consent". He was concerned with "action taken to preserve the life, health or well being of another who is unable to consent to it". To justify trespass, in cases such as the present, where the owner has the ability to refuse consent, the danger must be immediate and readily perceivable.
49. As pleaded, the alleged dangers are not in that category. I have referred to the manner in which the justification is pleaded in the defence. While it is a pleading point, that is not a criticism of the pleading, but a recognition by the pleader, realistic in my view, that the case cannot be put as one of imminent danger.
50. In granting summary judgment, and thereby holding that the proposed defence has no real prospect of success, the court is not applying a "blanket exclusionary rule" of the kind found offensive by the Court of Human Rights in Osman. The court is concluding, upon an application of the law to the particular facts pleaded, that the defence of justification has no real prospect of success.

I acknowledge the possibility that a danger may be great while remaining insidious. Investigation of whether GM crops do constitute a danger is of course to be welcomed. The existence of a system of licensing and control by a public body, potentially susceptible to judicial review, is also to be welcomed when novel operations are conducted. The law of trespass does not however acknowledge a defence of justification based on allegations such as those pleaded by the defendants in this case.

By way of postscript, I add that I did not understand Mr Gordon's central submission to be that the uprooting of plants was justified as a means of obtaining publicity which might lead to a change in the law. That was his extended submission, which I have no hesitation in rejecting. He did also however put the case on the more limited basis already stated, namely that uprooting was justified as a direct response to a real danger. I would accept his submission that in present circumstances a lawful act would not be rendered unlawful if done for a political motive or with the added intention of gaining publicity.

I agree with Stuart-Smith LJ on the other points raised in the appeal and I agree that the appeal should be allowed. I too would hear counsel further as to the precise form of injunction to be granted.

LORD JUSTICE MUMMERY:

I agree that this appeal should be allowed for the reasons given by Stuart-Smith LJ.

I wish to add the following comments on the arguments raised by Mr Gordon QC and the unrepresented defendants

1. Trespass to Land.

The relevant causes of action relied on by Monsanto for summary judgment are trespass to land and to goods. The defendants deny that Monsanto was the owner of or was in possession of the relevant GM oilseed rape and other plants growing on licensed trial sites which do not belong to Monsanto. An action for trespass to land may, however, be brought by a person who is entitled under an agreement with the landowner to exclusive possession of the growing crops : Crosby v. Wadsworth (1805) 6 East 602 at 609, followed in Back v. Daniels [1925] 1 KB 526 at 542. Monsanto have that entitlement under their written agreements with the growers. This defence cannot succeed.

2. Defences.

(1) The Pleading.

The defendants assert that their acts

"....were necessary to protect third parties and their property and/or were in the public interest."

Further details of that claim can be gleaned from other parts of the defence, from the affidavit evidence and from the defendants' written and oral submissions

The defendants are supporters of the GenetiX Snowball campaign of "non violent civil responsibility" which "aims to build resistance to new genetic engineering technology on grounds which include that there are unpredictable effects and it is unsafe and/or harmful to humans and ecology and that it is irreversible."

The defendants' case is that the creation of GM plants and crops has detrimental effects and that these are matters of public and scientific concern : it permits the transfer of genes between totally unrelated organisms and the random incorporation of these genes into a plant's DNA with unpredictable side effects ; it exposes humans to unpredictable toxic and allergenic effects; it greatly enhances the potential for the creation of new and more virulent viruses; it is linked to the increased and extended use of harmful chemicals and the increased creation of monocultures with detrimental effects on land, water ecology, food security and public health; it increases the risk of exposure of humans and animals to antibiotic resistant bacterial pathogens; it allows or risks cross-pollination with non-GM plants with unpredictable and potentially dangerous results, including harm to crops of other farmers; and it risks horizontal gene transfer from GM plants to soil and water borne bacteria and, through the system of patenting, undermines the autonomy of farmers .

Further details under these general headings were supplied by the defendants in their written and oral submissions. Special emphasis was laid on the impossibility of regulation and enforcement and on public opposition to GM foods. The unrepresented defendants also made specific complaints about the conduct of Monsanto. They stated their intention to call expert evidence on all these issues so that the court could rule on the public interest question.

The purposes and objects of the campaign invoke the "precautionary principle" in seeking to obtain a five year moratorium on the deliberate release of GM plants in Britain, except for certain government sponsored tests in enclosed systems and the removal by government agency, the farmers or the biotech companies of all existing GM plants. The acts of uprooting and encouraging others to uproot no more than 100 GM plants and crops is part of that campaign. The Defendants expressly disclaim any intention of removing all existing GM plants and crops by uprooting, destruction or damage.

(2) Defence of Necessity.

In exceptional circumstances necessity may justify trespass to land or to goods. But it is impossible to conclude from the nature of the matters which these defendants wish to establish at trial that the necessity defence has any real prospect of success in this case.

The defence is only available to the individual in cases of emergency where it is necessary for the private citizen to act in the face of immediate and serious danger to life or property and the citizen acts reasonably in all the circumstances.

The defendants do not even attempt to establish a case of emergency. The avowed symbolic significance of their actions (see the Handbook for Action paragraph 5.7.2.) and their disclaimer of an intention to pull up all GM plants are hardly consistent with acting in an emergency.

Further, even in cases of emergency, trespass by the individual, in the absence of very exceptional circumstances, cannot be justified as necessary or reasonable, if there exists a public authority responsible for the protection of the relevant interests of the public. In this case the Department of the Environment has that responsibility. In such cases the right of the individual to trespass out of necessity, whether as defender of his own or a third party's interest or as champion of the public interest, without attempting to enlist the assistance of the public authority, is obsolete.

In Burmah Oil Co Ltd v. Lord Advocate [1965] AC 75 at 164 Lord Upjohn said:

"No doubt in earlier times the individual had some such right of self help or destruction in immediate emergency, whether caused by enemy action or fire, and the legal answer was that he could not in such circumstances be sued for trespass or destruction of his neighbour's property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour's house to prevent the fire spreading to his own;he would be told that he ought to have dialled 999 and summoned the local fire brigade."

(3) Defence of Public Interest.

The defendants do not claim the backing of any general or specific statutory authority to do what they have done to Monsanto's crops. No case has been cited from any common law jurisdiction or textwriter recognising the protection or promotion of the public interest (as distinct from necessity) as a justification for a private citizen entering the property of another private citizen or inflicting damage on his land or personal possessions. The absence of authority for such a wide ranging common law defence, either for private citizens or for organs of the State, is hardly surprising. As Lord Denning said in Southwark LBC v. Williams [1971] Ch 734 at 744 a plea of this kind would, if allowed, "... be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand." See also the wise words of Megaw LJ at 747E-H. The fundamental principle of the common law remains very much as stated in Blackstone's Commentaries Vol.1 139-140:

"So great moreover is the regard of the Law for private property that it will not authorise the least violation of it; no, not even for the general good of the whole community."

It is for Parliament to enact laws restricting private property rights for the good of the community.

It is neither necessary nor reasonable that the defendants should be entitled to justify at common law their acts of trespass against Monsanto on the grounds of public interest.

On the one hand, there is a public interest in the enforcement of law for the protection of private property in particular and in the maintenance of public order in general. Public confidence in the legal system and in the rule of law would be undermined if the courts refused to enforce the law on the ground that defendants, who wished to establish the validity of beliefs sincerely and genuinely held, were entitled to rely on the public interest to justify wrongs to the property of others who did not share their point of view. It is extremely improbable that a reasonable man would regard the defence proposed as an acceptable reason for the unauthorised presence of anyone, public official or fellow citizen, on his property or on the property of anyone else .

On the other hand, the unavailability of public interest as a justification for trespass does not in any way curtail or prejudice the exercise by the defendants of their undoubted right in a democratic society to use to the full all lawful means at their disposal to achieve the aims and objects of GenetiX Snowball. Supporters can peacefully and effectively pursue those aims and gain publicity and public support for them in many different ways without the need to commit unlawful acts of trespass against Monsanto or anyone else.

Finally I note that one of the Convention Rights in Part II of Schedule 1 to the Human Rights Act 1998 (which is not yet in force) is in these terms-

" THE FIRST PROTOCOL

Article 1

Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."

I say no more as neither side relied upon it.

3. Private Law and Justiciability.

Even if the defence of public interest were available at common law to justify trespass by individual citizens or by organs of the State, the matters which the defendants intend to establish under that defence and on which they wish to obtain a final and conclusive judgment of the court are not properly justiciable by a court in an action for trespass. The court should for that additional reason refuse to entertain that defence in these proceedings.

These are not public law proceedings challenging the legality of the decision by the Department of the Environment to grant licences to Montsanto to do what they are doing.

These are adversarial private law proceedings to which no public authority is a party; in which the issues before the court are defined by the parties;in which the court will be confined at trial to consideration of the documentary and oral evidence of fact and expert opinion which the parties choose to call; and in which the court will only hear the arguments which the parties and their advisers wish to advance.

In these rather unpropitious circumstances the court will be invited by the defendants to make a seemingly authoritative final "judgment" on issues involving not only fact and expert opinion but also political choices and controversial policies the lawfulness of which are unchallenged in this action. Decisions on broad policy questions concerning the potential risks and rewards of GM crops clearly require input and back-up from sources of information, advice and specialist scientific and technical guidance to which the court does not have access.

By running this line of defence the defendants are directly inviting the court to trespass beyond the proper limits of the judicial function, away from the world of triable issues of hard fact and law and deep into the territory of state policy and political judgment involving matters which have no bearing on Monsanto's claim for trespass.

The court must resist the invitation to assume jurisdiction to resolve an issue of a kind which it is not its constitutional function to decide and which it is not competent and equipped to decide. Civil proceedings for trespass are not an appropriate vehicle for a determination on whether the growing of GM crops is in the public interest.

The defendants and their supporters can continue to argue freely and to campaign strenuously elsewhere that the growing of GM crops is not in the best interests of the public.

Order: Appeal allowed. No costs. Legal Aid Taxation. Leave to appeal to the House of Lords refused.