England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/05/2004

Mr Justice Mackay :

1. The First Claimant companies, which I will call "HLS", employ about 1,100 people at their two premises at Huntingdon and Suffolk. Their business is the conduct of research for the pharmaceutical, medical and allied industries. Of significance to this case is the fact that their work involves experiments on live animals in their laboratories, they claim under the control of the relevant statutory framework. The Second Claimant is managing director of HLS and seeks to claim relief on behalf of all its employees.
2. The First Defendant (which I shall call "SHAC") is an unincorporated association. It is a group of people who share a common purpose. All are strongly opposed to vivisection. All share the aim of closing down HLS as a business. It has a website and it issues newsletters, but has no formal structure by way of membership, a committee, appointed officers or any constitution, as far as the evidence currently before the Court shows. It is said by the Defendants who appeared before me to be a large but disparate group of people drawn together by their opposition to HLS and its work.
3. The Second to Tenth Defendants are individuals said by the Claimants to be connected with the First Defendant and sharing the aims for which the First Defendant exists. The Eleventh and Twelfth Defendants are two other un-incorporated associations active in the field of animal rights protests generally. The Claimants say that there is evidence showing that they are active allies of the First Defendant in their endeavours to shut HLS down; that all Defendants have sought and unless restrained will continue to seek to achieve their aims by unlawful means, which will include harassment and intimidation of their employees. There is a campaign which in the past has included attacks on employees and more recently attempts, largely successful, to drive away those who supply goods and services to HLS or are its customers.
4. The Defendants whose cases I have been considering say that there is no evidence connecting them with any such activity, at all events not currently nor for many years. They say their strategy has focussed on persuading by lawful means those who deal with HLS to stop doing so. In the application which I have heard the Second and Third Defendants appeared in person and the Second Defendant spoke for them both and, as I understand it, for the Fourth Defendant. I gave permission for Mr Simon Dalley to represent them on matters of law which he did with great ability. I heard from an Interested Party Mr Eddie Gratwick.
5. In the proceedings, which I will have to describe in more detail, the Defendants fall into two groups. Defendants 2, 3, 4 and 9 who have entered a defence to the Claims and from time to time played a part in proceedings I will call "the Relevant Defendants". Defendants 1, 5, 6, 7 8, 10, 11 and 12 have played no part in the proceedings and I will call them "the Defaulting Defendants".
6. There are three applications before me today. There is an application dated 29^th March 2004 in which the Second Claimant seeks to strike out the defence or part thereof, of the Relevant Defendants on the grounds that it does not disclose reasonable grounds for defending the claim and/or is an abuse of process and/or likely to obstruct the just disposal of these proceedings. Secondly there is an application dated 5^th April 2004 for summary judgment against the Relevant Defendants on the grounds that they have no real prospect of successfully defending the claim and there is no compelling reason why the claim should be disposed of at a trial. Thirdly there is an application dated 7^th July 2003, which currently stands adjourned pending the resolution of an appeal with which I will deal below, for a default judgment against the Defaulting Defendants.

The history of the proceedings

7. On the 9^th April 2003 these proceedings began with an application to Davis J for injunctive relief. He declined to grant an injunction without notice and adjourned the application, giving directions which included an Order that the Claimants issue and serve their claim form, which was done. A week later on 16^th April 2003 the matter became before Pitchers J on notice with three of the Defendants represented (I believe the Second Third and Fourth, although it is not quite clear) by counsel. He heard the matter for a day and granted interim relief. Broadly his order restrained a group of persons, called "the Protestors", from pursuing a course of conduct which amounted to harassment of the employees of HLS; specified the actions which were prohibited; and prevented them from approaching the homes of those employees or entering on to the land of HLS at its two sites. It allowed demonstrations to take place once every 30 days with a maximum number of protestors and a maximum duration of protest, all within certain designated areas and subject to conditions. The definition of "Protestor" was:

"the Defendants whether by themselves their servants or agents or otherwise, and any other person who is acting in concert with any of the Defendants and who has notice of the terms of this Order whether by himself his servants or agents, and by any other person who has been given notice in writing of the terms of this Order whether by himself his servants, agents or otherwise".

8. As the Judge remarked he made that Order on notice, but fairly short notice considering the complexity of the facts in the case. The return date that he specified was extended to the 20^th June 2003.
9. On that date Gibbs J conducted a further hearing. On this occasion counsel represented the Second, Third, Fourth and Ninth Defendants and there were no other appearances. With certain minor alterations he continued the previous Order "pending trial".
10. Gibbs J, unsurprisingly, said that his decision was guided by the balance of convenience, and though the Defendants had put evidence in he was not in a position to make findings of fact on that evidence but had to make a provisional assessment as to its weight on either side in deciding where the balance lay. Having recited the terms of the relevant legislation, with which I must deal below, he concluded that Pitchers J had been right to find that it did not permit an injunction at the suit of a limited company such as the First Claimants, although he made no ruling to that effect. He briefly alluded to some of the evidence against the Defendants, and summarised it in this way (paragraph 33):

"On the material before me there is strong evidence: (a) Of intimidation and harassment of the Claimants' employees at or near their homes. (b) Of some actual assaults. (c) Of obstruction of the passage of people in vehicles near the Claimants' premises and in some incidences near the employees' homes. (d) Of the conviction of some Defendants of criminal offences in the course of the campaign. (e) Of other forms of conduct such as sending unsolicited mail, placing false advertisements at the use of constant telephoning, faxes and emails, any or all of which could be capable of amounting to harassment of the individuals in receipt of them. This conduct is closely associated with publications and leaflets, some of which can be linked directly to the First Defendant and in some cases with other Defendants".

He noted that the Defendants who were represented were denying that they could be linked to recent incidences of such behaviour.

11. He reminded himself of the provisions of Articles 10 and 11 of the European Convention on Human Rights to which I will have to return, and concluded as follows:

"50. On examination of the evidence in the case, and having conducted the balancing exercise I find that the balancing of justice and convenience weighs heavily on the side of granting an interim injunction. In the case of each of the defendants, both individual and group defendants separately considered, there is evidence that they have either directly broken the law: in the case of individual defendants by being convicted; or by having encouraged breaches of the law, in the case of each of the group defendants and several of the individual defendants. It is said that the individual defendants have recently thought better of extreme tactics that led them into trouble. I hope that is correct.

If and when the time comes that these matters are tested at trial the proposition in the case of each individual defendant can be tested and, if their assertion is right, it will then be accepted. I cannot speculate about that, but the evidence about each defendant as it stands at present and untested is sufficiently strong and recent to carry sufficient weight at the interlocutory stage of the proceedings.

The volume of evidence against the individual defendants, it is true, has significantly declined over the most recent period; but serious unlawful acts associated with the first defendant have continued.

53. The emphasis of such activities has to some degree switched to the companies which deal with the first claimant and away from employees. But such activities still included quite serious breaches of the law. Thus, in my judgment, there is a serious likelihood, in the absence of continuing injunctive relief, that employees will suffer further unlawful harassment of a serious nature".

He therefore continued the injunction with minor amendments, which included increasing the frequency of demonstrations permitted to every seven days. He described his Order as "An interim Order pending trial". Though the Court of Appeal gave the Defendants permission to appeal against this order the appeal was abandoned at the end of last year; I was told the decision was dictated by the Defendants' lack of funds.

12. On the 16^th July 2003 a defence settled by counsel was served on behalf of the Relevant Defendants. I paraphrase the issues that it raises in this way:

(1). It is not lawful or appropriate for the First Claimant as a Limited Company to bring this claim, or for the Second Claimant to use the provisions of CPR 19.6 to bring this action on behalf of a large group of employees.

(2). The Protection from Harassment Act 1997 cannot be deployed against a large group of persons represented by the First Defendant SHAC under CPR 19.6.

(3). The Relevant Defendants are "involved in the coordination of the SHAC campaign" but do not represent it nor are they its "principal coordinators", as alleged in the claim.

(4). The Relevant Defendants deny that they have been involved in tortious acts or harassment.

(5). They deny there are close ties between SHAC and the other unincorporated defendants D11 and 12.

(6). The Claimants' reliance on past convictions of the Relevant Defendants is not a valid basis for injunctive relief.

(7). The Defendants deny the allegation that they have incited others to carry out unlawful actions.

The case for the Claimants

13. In general terms the evidence filed by the Claimants describes a campaign, starting in about November 1999 and initially directed at the company and its employees, involving attacks on their homes, persons and property, and extending into similar forms of intimidation of those who did business with the company. I consider it appropriate to analyse the Claimants' case against each of the Relevant Defendants viewed separately, at least initially.
14. So far as the Second Defendant is concerned the corner stone of their case, as Mr. Lawson-Cruttenden stated in argument, is formed by two convictions recorded against him, which are admissible in this action under the Criminal Evidence Act 1968 s.11. On the 16^th March 2000 at Huntingdon Magistrates' Court he was convicted on his plea of guilty under s.4A of the Public Order Act 1986 in that on 3^rd December 1999 at Huntingdon, with intent to cause a person, harassment, alarm or distress, he used threatening abusive or insulting words or behaviour thereby causing that person harassment, alarm or distress. He was sentenced to 4 months imprisonment. Secondly, on the 14^th November 2001 at the Basildon Crown Court he was convicted of conspiracy to incite a public nuisance, the particulars of offence stating:

"Between 1^st January 1999 and 1^st September 2000 he conspired together with other persons to incite readers [sc of SHAC literature] and supporters of Stop Huntingdon Animal Cruelty to cause a public nuisance by doing acts the effect of which was to endanger life, health, property and comfort of the public or to otherwise disturb the peaceful enjoyment of those rights".

He was sentenced to 12 months in prison.

15. Both these convictions related to his personal direct involvement in the SHAC campaign against HLS. The first related to a violent confrontation between the Second Defendant and an employee of the company outside the company's gates. The Second related to his responsibility for newsletter material disseminated on behalf of SHAC by him and others which the sentencing Judge described as an orchestrated campaign against shareholders and workers in their own homes. The sentence on each occasion reflected the serious view that the court evidently took of the facts of each case.
16. Since his convictions the thrust of SHAC's activities has turned towards those who supply it with goods or services or who are its customers. Its auditors, insurers and financiers have all been frightened off by direct and unlawful action. The company now is insured by and receives banking services from the UK Government since the world of commerce shuns it through fear. The Claimants say that the Second Defendant can be linked, at least by inference, to these campaigns. In four separate sets of proceedings companies which are customers of HLS, or associated with such customers, have sought and obtained interim injunctions against him substantially in the form of Gibbs J's Order in this case. Such orders were granted by Owen J on behalf of Daiichi UK Limited and Others on 13^th October 2003; Field J in an action by Emerson Developments (Holdings)(Limited) and Others on 26^th January 2004; Goldring J in an action by Phytopharm PLC and Others on 3^rd March 2004; and Royce J in an action by Chiron Corporation Limited and Others on 9^th March 2004. In all these actions the Court in interlocutory proceedings accepted that the various claimants had established, to the standard necessary for interim relief, that the claimants had been the targets of a sustained campaign of unlawful intimidation by SHAC directed at their personnel and there was a realistic prospect of those claimants proving that the Relevant Defendants and in particular D2 were party to that campaign.
17. In this action Mr. Lawson-Cruttenden specifically points out the following evidence involving the Second Defendant and his activities subsequent to his second conviction.
18. A SHAC newsletter, undated but from internal evidence no earlier than 2002, records in triumphant tone the results of the international arm of the campaign, describing how the campaign against Stephens (financiers in the US who had taken over the financing of HLS when their bankers withdrew) "had been savage, culminating in an attack on the New York apartment of Warren Stephens ….." and concluding:

"We now move on to the last chapter of the campaign – this one will be the most savage of all as it involves the final closure of Huntingdon. As always our tactics remain a secret until they hit Huntingdon so keep looking at the website for updates and future diary dates and play your part in history".

The entry concludes, "please note that SHAC does not encourage or incite illegal activities". For reasons appearing below the Claimants say they can prove that the thrust of this message is endorsed and supported by the Second Defendant.

19. A SHAC newsletter from 2003 records in approving terms the ten day campaign against Deloitte and Touche, HLS's auditors, which resulted in that firm withdrawing. It describes the action between the 18^th February and 1^st March as including physical attacks by the Twelfth Defendant against the auditors' premises and the home of one of their directors, as well as office occupations and home demo's. In a page headed "March Mayhem" it records ALF activists' gleeful accounts of what can only be described as criminal harassment of persons associated with HLS. It concludes with an appeal for contributors to send more demo reports in as they are "vital to the campaign". This newsletter, say the Claimants, gives approval to and encouragement of unlawful action against among others employees of HLS.
20. A web page apparently dated at the end of 2002 records the successful campaign to intimidate HLS's insurer Marsh, which ran between February and December 2002. It states that Marsh had its office windows smashed, experienced daily office demos, home visits, protest camps set up at the homes of several directors, "name and shame" leafleting and cars paint- stripped. The tone is wholly approving.
21. On 18^th December 2002 in the Financial Times the Second Defendant, described as "coordinator" of SHAC, is recorded as saying:

"This is a massive victory. SHAC has gone global. This has served as a training ground for our next target. What we are interested in is impacting Huntingdon's bottom line".

This interview was given on the very day that Marsh pulled out and shows, they say, that the Second Defendant is a spokesperson for and coordinator of a organised and global campaign whose methods include unlawful means.

22. The campaign against Deloitte and Touche, which reached a successful climax in March 2003, was discussed by the Second Defendant, according to a report in the Guardian of 1^st March 2003. SHAC had benefited from inside information as to the contact details of 135 managers and their secretaries which was sent to activists who proceeded to bombard their email addresses and disable their mobile phones. The reports states:

"Greg Avery, SHAC's coordinator, describes the leak from Deloitte as the best information we have ever had from inside a company."

23. A major event in the animal rights year is World Day which in April 2004 included a meeting with speeches and a march in Cambridge. The Claimants say there was nothing unlawful about the methods used and that this was a legitimate day of protest. Its significance, they say, is that the Second Defendant appears as a key platform figure and spokesman for SHAC. He shared a platform with the press officer for the twelfth Defendant, the ALF, who advocated "the closing of HLS by any means necessary". The Second Defendant himself addressed the gathering saying that "direct action works ….. we will do whatever works to save animals". This evidence shows, says the Claimants, that the Second Defendant continues to be prominent and influential in the continuing SHAC campaign, which includes advocating the use of unlawful means.
24. I now consider the case against the Third Defendant. She is the wife of the Second Defendant. She too has relevant convictions as follows.
25. On 22^nd January 1999 at Huntingdon Magistrates' Court having been charged under s.5 of the Public Order Act with using threatening, abusive or insulting words or behaviour on 27^th August 1998 at HLS premises at Huntingdon she was bound over to keep the peace for 12 months. On 30^th March 2000 at the same court she pleaded guilty to the same charge in relation to events which had occurred on 22^nd March 2000 at HLS, Huntingdon, and was conditionally discharged for 18 months. On 17^th June 2000 at the same court she pleaded guilty to taking part in a public assembly and knowingly failing to comply with the condition imposed by senior police officer under s.14 of the Public Order Act 1986 in relation to events which had occurred on 17^th June 2000 and was fined £100; for an admitted breach of her conditional discharge she fined £50. On 13^th February 2001 at the same court she pleaded guilty to a further offence under s.14 of the Public Order Act, that offence having occurred on 22^nd April 2000, and was discharged conditionally for 12 months. Finally on 13^th November 2001 she was convicted at the Basildon Crown Court together with her husband and the Fourth Defendant for conspiracy to incite a public nuisance and was sentenced to 12 months imprisonment. I have already referred to this conviction above in relation to the Second Defendant.
26. Since those events the Claimants say she has continued to be prominent in the continuing SHAC campaign and has continued to support and encourage the use of unlawful means. On 9^th March 2003 she is described in an article in Scotland on Sunday as "SHAC's co-leader" and as saying:

"Our message to any company has always been very simple. If you deal with Huntingdon you deal with SHAC and we will target whoever we want to achieve our aim ….. Passing laws against us is laughable because we will always find a way around them. In any case going to prison is a small price to pay if it means closing HLS down".

In the context of a discussion on direct attacks on HLS personnel the reporter states:

"Natasha Avery is unrepentant 'we support any direct action taken with the specific aim of closing down HLS as long as there is no harm done to human or animal life', she said".

27. On 25^th February 2003 in an article in the Cheshire Daily Post she is described as a spokes woman for SHAC and as saying "there will be more protests at the Deloitte and Touche office in Liverpool – that's a promise". She added that the protest could take a number of forms including sending large volumes of unwanted mail and using the latest computer technology to jam phone lines. It should be remembered that the Liverpool office of D and T had suffered a direct physical attack from the ALF in the course of the campaign.
28. On the 5^th March 2003 in an article in the Aberdeen Press and Journal she was described as "Natasha Avery of SHAC" and as saying in relation to a Scottish company associated with HLS:

"The message is simple: Anyone dealing with HLS will have to face the consequences of that alliance. If you are involved in animal cruelty don't think you can go home at night and get away with it. We will tell your neighbours exactly what you are involved in. We support any form of action against anyone working with HLS".

29. In the SHAC website on 23^rd May 2003 she is described as a spokesperson for SHAC and warns accountancy firms thinking of replacing Deloitte and Touche:

"SHAC is sending out a loud and clear message to the industry: Any company that audits HLS will be targeted retrospectively, and will serve as a living lesson that if you are prepared to support animal cruelty by aligning yourself with HLS, there will be a heavy price to pay for that alliance".

30. As to the Fourth Defendant, she was formerly the wife of the Second Defendant. She has convictions relating to SHAC campaign activities. On 6^th November 2000 at the City of London Magistrates' Court she was convicted of criminal damage at the premises of the Bank of New York, Lombard Street on 5^th May 2000 and was conditionally discharged. On the 25^th June 2003 at Brighton Magistrates' Court she was convicted of common assault and an offence against s.4(1)(a) of the Public Order Act 1986. She was sentenced to 180 hours community punishment on each charge concurrently.
31. Since those matters she has been arrested and charged on 18^th July 2003 in respect of an alleged assault outside the offices of a customer of HLS in Surrey and is awaiting trial. She has been summonsed in respect of an incident at another such company's address in Cambridge, which matter is yet to go before a court. The alleged offence occurred on 23^rd February 2004.
32. So far as her role in SHAC is concerned she was a speaker at its rally on World Day 2003 as well as that in 2004 to which I have referred above. On 17^th April 2003, referring to the Order of Pitchers J in an interview with the Cambridge Evening News, she is reporting as being "Heather James of SHAC" and as saying that the injunction was only temporary and that the group solicitors would return to court to challenge it. She said "we take the injunction as a huge compliment to the campaign". On 23^rd April 2003 she is reported in the Hunts Post newspaper as spokesman for SHAC and again commenting on the injunction in similar terms.
33. As to the Ninth Defendant she has a number of convictions relating to animal rights protests some of which appear to relate to HLS. She is not said to be tied into the SHAC campaign in the same way as the Second, Third and Fourth Defendants and the claim for summary judgment against her is not pressed by Mr. Lawson-Cruttenden.

The relevant legislation

34. So far as relevant the Protection from Harassment Act 1997 reads:

1. (1) A person must not pursue a course of conduct –

(a) Which amounts to harassment of another and

(b) Which he knows or ought to know amounts to harassment of the other ……

2. (1) A person who pursues a course of conduct in breach of s.1 is guilty of an offence.

    (2) A person who is guilty of an offence under this section is liable on summary conviction to imprisonment on a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both………

3. (1) An actual or apprehended breach of s.1 may be the subject of a claim in civil proceedings by the person who is or maybe the victim of the course of conduct in question…….

     (3) Where –

(a) in such proceedings the High Court or the County Court grants an injunction for the purpose of restraining the Defendant from pursuing any conduct which amounts to harassment, and

(b) The plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,

The plaintiff may apply for the issue of a warrant for the arrest of the defendant …….

     (6) Where –

(a) The High Court or the County Court grants an injunction for the purpose mentioned in sub-section 3(a), and

(b) Without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,

he is guilty of an offence ……

     (9) A person guilty of an offence under sub-section (6) is liable –

(a) On conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both…

7. …………

     (3) A "course of conduct" must involve conduct on at least 2 occasions.

     (4) "Conduct" includes speech.

This Claim proceeds under s.3(1) for apprehended breaches of s.1. Though a civil claim, it will be seen that the injunction if granted and breached attracts significant criminal sanctions

So far as relevant the Supreme Court Act 1981 provides as follows:

s.37 (1) The High Court made by Order (whether interlocutory or final) grant an injunction ….. in all cases in which it appears to the Court to be just and convenient to do so.

The claim for summary judgment

35. Mr Lawson-Cruttenden in the case of the Second, Third and Fourth Defendants says that admissible evidence as to the convictions means that in each case a course of conduct is established. Having regard to the evidence as to what has happened since those convictions there is, he says, no sufficient change in the thrust of the campaign to come to the conclusion that the Claimants are not right to say there is reason to fear further harssment of their staff unless these Defendants are restrained. Relying on the case of Burris v Azadani [1995] 4 AER 802 he argues that having regard to the Defendants' past behaviour the real question is whether the Claimants now need the protection of an injunction. The investigation today is concerned, he says, more with the Claimants' present needs than the Defendants' behaviour, or at least their current behaviour, as I understand his argument. He says in terms that there is now a burden on the Defendants to show that they have changed their intentions to such an extent that the protection of the injunction is no longer necessary or appropriate. If that involves a restraint of activities that would otherwise be lawful, that is something that it is nevertheless just and convenient to do. He says there is no arguable case that the Defendants can mount in defence of the claim.
36. The case of Burris, it seems to me, is useful authority for the proposition that the imposition of an exclusion zone, such as appears in Gibbs J's Order, is or may be appropriate where the facts of the case warrant it. That exclusion zone may have the effect of restraining conduct not in itself tortious – e.g. travelling along a public highway – but such a restraint maybe imposed if it reasonably regarded as necessary for the protection of a plaintiff's legitimate interests – see Sir Thomas Bingham M.R. at 807J to 808A. With respect to Mr. Lawson-Cruttenden's argument I believe that the extent of that authority is more limited than he submits. Once the case for an injunction is made out on traditional principles, namely that it is justified by evidence indicating there is a real danger of loss or harm to the claimant unless the defendant is restrained, then when the Court considers the means to be adopted, and the shape and scope of the order, the focus is indeed turned on to the claimant's needs, as he puts it. But at all times, in my judgment, in applications of the nature of these the burden remains on the Claimant to satisfy me that the defence of these Defendants should be struck out as abusive alternatively that there should be summary judgment on the grounds that there is no real prospect of it being made out a trial so I should now therefore turn to consider the Defendants position.

The Defence

37. I have summarised above the effect of the written defence drafted by counsel for the Relevant Defendants. So far as the evidence is concerned D2 and D3 submitted a joint witness statement and the Second Defendant addressed me at the hearing, in a concise and courteous way, on behalf of himself and the Third and Fourth Defendants. He started by pointing out that all previous Orders in this action, and in the other actions, had expressly been made on the traditional interlocutory basis, namely that they were advised by their lawyers that there was no need to deploy their full evidence since the Court was only considering the interlocutory tests and that the Defendants would at some future stage have their day in court, as he put it. All Orders were expressed to be made "until trial".
38. He says there is no shred of evidence to support any suggestion that they have personally been guilty of illegal activity since their convictions. He points to the delay in instituting these proceedings, there having been a previous injunction in 1997 which has not been pursued. But the thrust of his factual submission is that having served his sentences of imprisonment in respect of things he did between November 1999 and September 2000 he has not engaged in or encouraged others to engage in unlawful conduct, and he has not even been back to the Claimants' premises. Changes have been made to the methods used by SHAC to coordinate this campaign which go against any suggestion that there is any real or apprehended threat of further harassment of HLS employees. He explains the nature of the website as being large and freely accessible to thousands of people. Some of the material on it may have been put there when these Defendants were in prison. More to the point, he says that since then a system has been set up by which a panel of three barristers vet the website and its contents, and SHAC invariably accepts their advice.
39. He says that since the beginning of 2001 (see the extract from Huntingdon and St Ives Evening News 16.01.01) so far as he and the other Defendants have been concerned they have been at pains to stress that they were peaceful protestors and have dissociated themselves from violence and law breaking. He has provided a number of examples of that policy annexed to his latest joint witness statement. The current disclaimer which appears, he says prominently on the SHAC website is in these terms:

"SHAC's stated aim is to bring about the closure of HLS by all legitimate forms of protest and by highlighting their record of animal cruelty, staff incompetence, falsification of data and criminal activities.

Nothing contained on this website or any SHAC publication is intended to encourage or incite illegal acts…… any articles from the press published on this website relating to illegal activities carried out against HLS and associated companies are posted for the sole reason for publishing news related to HLS and are not intended to incite or encourage similar acts. Many of the demo reports are received by SHAC anonymously and we cannot take any responsibility for the content or accuracy of these reports.

The comments expressed on this website are not necessarily the views of SHAC or the site editors".

He says that he has asked Mr. Lawson-Cruttenden directly if there are

any problems that he sees in material on the website and has removed all items when have been pointed out as objectionable. He believes that he can prove, given full opportunity at trial to do so, that for the past three years sincere and effective discouragement of violence has been a feature of SHAC's published material.

40. As to his sharing a platform with the ALF in Cambridge this year, he said that Mr. Webb was not originally billed to be a speaker but replaced another speaker who was unable to attend. He claims that he agreed to let Webb speak provided he did not discuss law-breaking. All ALF material such as I have cited above has now been removed from the website to avoid the risk of SHAC being associated with it, despite legal advice that they were entitled to leave it there.
41. He also makes points about the width of the relief, saying that it is capable of catching within its net the wrong people, as he puts it; and he asks rhetorically why not injunct the individuals on a named basis? That was the point that I understood Mr. Gratwick the Interested Party to make when I gave him leave to address me shortly.
42. Dealing with the legal aspects of the Defendants position Mr. Dalley made effective and able submissions to me, for which I am grateful. He accepted that what had been placed before the Court was sufficient for an interim injunction, on the balance of convenience, but not for a final Order. He submits there is a triable issue as to whether the Second to Fourth Defendants are principal spokespersons of the campaign and makes the same points about the absence of opportunity to contest evidence fully. Nothing has happened since the Order indicating that these Defendants have been in breach of it. The previous convictions on their own are not enough, he argues to sustain a continuing Order in these circumstances. More is needed and it is not there.
43. An injunction being a matter of discretionary relief, he points to recent changes in the relevant legislation which diminish the need for its protection. First s.16 of the Public Order Act 1986 has been modified so that "an assembly" may now consist of two persons rather than twenty. Secondly, an amendment to the Anti-Social Behaviour Act 2003 makes aggravated trespass an offence which may be committed within buildings as well as in the open. Both these amendments he considers have been introduced specifically to deal with protests of this kind. Thirdly, Anti-Social Behaviour Orders can now be imposed against any person who has acted in an antisocial manner where a such an Order was necessary to protect relevant persons from further such acts, and interest groups sharing the position of HLS have welcomed such a change. Fourthly under s.30 of the same act the police have power to disperse groups of two persons or more where members of the public have been harassed by groups of persons in the locality.
44. So, he argues, these changes give significant new powers to the police and it is arguable that the injunction is not necessary at all or, at least, not in the current form.
45. Next he argues that the effect of the injunction has been to inhibit lawful protest by those entirely unconnected with SHAC. He exhibits witness statements from persons who claim to have experienced difficulties when exercising lawful rights even though they are not SHAC supporters nor truly protestors within the meaning of Gibbs J's Order.
46. He then makes points about the representative nature of these proceedings. These in my judgment are points of no little difficulty. The Claimants rely on CPR 19.6 which reads:

"19.6 (1) Where more than one person has the same interest in a claim –

(a) The claim may begun; or

(b) The Court may order that the claim be continued,

by or against one or more of the persons who have the same interests of representatives of any other persons who have that interest".

He argues that a limited company is not a competent claimant under the 1997 Act on its own behalf as was decided, albeit obiter, by the Divisional Court in DPP v Dziurzynski [2002] EWHC 1380 (Admin). Owen J so found in the Daiichi action to which I have referred, and, while not conceding the point, Mr. Lawson-Cruttenden does not advance this claim at the present stage on behalf of the First Claimant. Mr Dalley's argument therefore is that the Second Claimant is using CPR 19.6 to bring a claim as some form of stalking horse ( my phrase not his) to benefit the First Claimant which the First Claimant is not itself competent to bring. Mr. Lawson-Cruttenden's answer is that even if this injunction also benefits the First Claimant it undoubtedly is for the benefit of those represented by the Second Claimant and in effect all their interests are no more than "the same interests", to use the wording of the rule.

47. Next Mr Dalley argues from the authority of Dziurzynski that ll00 employees working at two sites could not be a close knit group given the Divisional Court's views as expressed at paragraph 42 of that decision. Therefore the use of CPR 19.6 is not appropriate in this case.
48. Mr Lawson-Cruttenden refers to the authority of M. Michaels (Furriers) Limited v Askey and Others, (The Times 25 June 1983) and argues that, as with the RSC predecessor to this rule, a flexible and broad approach should be adopted. In that case the court was considering injunctions in an animal rights protest context against named Defendants on their own behalf and on behalf of other members of an unincorporated association. The Court of Appeal approved of that approach. It said that care had to be taken against abuse, but that where a number of unidentified persons were causing injury and damage by unlawful acts and there was an arguable case that they belonged to a single organisation, the rule enabled the court to do justice in the particular case. Mr Dalley's point is that the facts of this case do not make it appropriate for such an order due to the very large number of persons said to be associated with SHAC and its disparate nature as an entity. As Rose LJ put it when considering the position of representative complainants or victims:

"Every case must be determined as one of degree by reference to the particular circumstances."

49. While in the present case, say the Defendants, it may appear that no such abuse has taken place on an interlocutory basis the question at trial will be different, and much more detailed consideration will need to be given to this question before granting a final permanent injunction such as the Claimants now seek on a summary basis.
50. There is also the question of Articles l0 and 11 of the ECHR with which Gibbs J dealt extensively in his judgment between paragraphs 41 and 55. Mr Lawson-Cruttenden argues that I am in as good a position today as would be a trial judge to assess whether the balancing exercise required to ensure that the court is having regard to those qualified rights, has been properly carried out. Mr Dalley argues to the contrary, that material is likely to emerge at trial which will be relevant to that process, such as the evidence that in practice legitimate protest is being unreasonably stifled, as well as the considerations mentioned above about enhanced policing rights and powers coming from new legislation. These questions are therefore fact-sensitive, in his submission.
51. Finally, Mr Dalley relies on CPR 24.2 and in effect says that even if there is no real prospect of a successful defence it has not been shown that there is "no other compelling reason why the case or issue should be disposed of at a trial". He says that many other peoples' rights are impacted by this order and HLS has become something of a focus point in this area of our public life. There is, he says, a public interest element, a need to have a debate which is free and not stifled and injunctions should not be used in support of them.
52. In my judgment it must be accepted there are powerful and troubling forces at play in this dispute. If the Claimants are right all these Defendants are party to a ruthless and menacing campaign which skilfully uses modern media and plays on the views and emotions of those who espouse or are sympathetic to the cause of animal rights. They are prepared to use criminal means to bring a company to its knees and deprive the community of the value of the work it does. The implications go beyond the world of medical research but strike at the foundation of society, namely the rule of law itself. The Claimants say these Defendants have retreated skilfully into the shadows when it suits them, have erected hypocritical defences and sought to deceive the court about their true responsibilities. The court is invited to make robust findings of fact based on inferences from the primary facts proved.
53. On the other side, the relevant Defendants say they have points of general importance to raise. Even ignoring their political beliefs, that the activities of HLS are immoral and criminal, of direct relevance is their claim that a precedent will be set by these orders sought for the disproportionate and repressive stifling of the legitimate expression of awkward political views and protests. This they say is an area of great public concern and cannot be dismissed as the complaints of a cranky minority. They have striven to obey draconian orders of the court. They have done so in the expectation that their day in court would come and it is now proposed to take that away from them.

Conclusion

54. I do not doubt that I would have exercised my discretion, had I been the judge on that occasion, in exactly the same way as Gibbs J did on 20 June 2003. He thought the balance came down heavily on the Claimants' side, while recognising that the volume of evidence was declining over the most recent period. I too believe that the Claimants have a formidable case; it could be described, viewed as of today on paper, as one which appears likely to succeed.
55. But I am not satisfied there is no real prospect of a successful defence for the Relevant Defendants here. They may be able to show that over the last 2 – 3 years they have not personally been involved in or incited others to take part in unlawful acts, as opposed to legitimate direct action. There are grave difficulties surrounding CPR 19.6 and its application to the facts of this case. The impact of the ECHR is to a degree fact-sensitive as well. Above all the grant of an injunction is a discretionary remedy and many of the other points advanced on behalf of the defence which I have endeavoured to summarise above will, or may be, relevant in that exercise.
56. There is also, in my judgement, a compelling case for this matter to be tried. The prospect of a trial is a daunting one and close control by case management will be necessary to prevent it being unnecessarily prolonged or turned into a travesty of the legal process. I should say that based on their performance in court before me, the Defendants gave no impression of wanting to do that. In this context I am encouraged to note that the Defence filed does not seek to raise the question of the legality of HLS' operations, and had it done so I would have had no hesitation in striking it out. This trial will therefore not become a platform for the Defendants' political views on animals rights in general and the merits of HLS as a Company in particular. It will proceed on the assumption that HLS is entitled in law to pursue its activities within the constraints imposed by statute, also that all the Defendants have acted out of sincerely held beliefs that what HLS do is both morally repugnant and criminal.
57. If the Claimants are right, and I have said I regard their case as a strong one, then an authoritative judgment denouncing those Defendants guilty of such serious and criminal behaviour will be both of public importance and of undoubted authenticity if it comes after a full open trial at which the Defendants have had every opportunity to defend themselves. Equally, there exists a possibility, which is more than a fanciful one in my judgment, that the Relevant Defendants or some of them may refute the allegations connecting them with the unlawful actions complained of or, at the least, may persuade the Court that its discretion should be exercised differently once the full facts are known.
58. I draw comfort from the fact that I make this order in the knowledge that the current order will and must continue in the form in which it was made (subject to any minor revision sought today) until this trial. There is every reason to believe it will be effective until then, so far as these Defendants are concerned, as it has been in the past.
59. Careful consideration must be given to the future conduct of this trial and I shall give directions accordingly, including directions as to whether any named Defendant should be ordered to stand as representative of SHAC, after the parties have had a chance to consider this judgment and make their submissions.