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
		21st October 2005

MR JUSTICE MACKAY:

1. This is an appeal by permission of the Single Judge by the 11^th Defendant London Animal Action against the Order of Master Yoxall dated 1⁵¹ March 2005, in which he made a final third party debt Order against the Cooperative Bank PLC for £6,721.23. I must explain the circumstances in which this Order was made.
2. This action has a long and complicated history. The Claimants operate a laboratory which uses animals for testing and research in the pharmaceutical and allied industries. The Defendants are said to have been involved in. harassment of the Claimants' employees and premises. Interim injunctions have been obtained from time to time culminating in an Order of 25th June 2003 by Gibbs J made at a hearing in which the parties were represented. He made a detailed Order, the terms of which are not relevant to this appeal, restraining the Defendants in their activities.
3. Earlier on 9th April 2003, Davies J had ordered the 1st Defendant Stop Huntingdon Animal Cruelty ("SHAC") to represent the interest of protestors generally. I made a further Order on 26th May 2004 continuing the injunction, giving leave to defend to certain defendants, and making a default judgment for a final injunction against the 5^th, 6^th, 7^th , 8^th , 10^th, 11^th and 12^th Defendants none of whom had acknowledged service. My Order was made on the basis of Mr. Justice Davies' earlier Order that SHAC represent the interests of;

"all animal rights Protestors and all groups who are concerned with conducting protests or other activities against the Claimants".

Protestors were defined in the Order as:

"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 or otherwise and by any other person who has been given notice in writing of the terms of this Order, whether by himself, his servants or agents or otherwise".

All "protestors" were then subject to the restraints set out in paragraphs 1 and 2 of my Order. The Order continued in this way:

"3. The Claimants have permission to enforce the Order herein as against the members. of London Animal Action, Animal Liberation Front, and the Protestors as defined in this Order pursuant to CPR 19.6 (4)(b) and to the Protection from Harassment Act 1997......

8. That the 5^th, 6^th 7^th, 8^th, 10^th 11^th and 12^th Defendants do pay the Claimants' costs of these proceedings on the standard basis to be subject to a detailed assessment if not agreed".

4. It came to the notice of the Claimants that there was a bank account in the Cooperative Bank in the name of the 11^th Defendant London Animal Action. They obtained an Interim Order in respect of that account on 18^th January and a final Order on 1^st March, which is the Order against which the 11^th Defendants now appeal.
5. The 11^th Defendants were represented at the appeal by Mr. Dally who conducted the appeal with great skill. He is not a solicitor or barrister but I gave him permission to represent the Appellants' interests. I asked him the source of his authority to act and he said he was instructed by the 9^th Defendant Claire Persey. Her witness statement in this appeal said that she is "part of the group London Animal Action" which campaigns for animal rights and part of whose activities has involved protesting against the Claimant. She says that it does not have any formal membership or elected officers or spokespersons and is not incorporated, but does have a website and bank account and has monthly meetings at which lawful protest activity is discussed. She attends the meetings, as she puts it. The bank account with its six thousand odd pounds is in the name of the association. Mr. Dally has had no contact with any other member of LAA. Miss Persey does not give any information as to what, if any, authority she had to instruct Mr. Dally to launch this appeal. Likewise she does not state were the money has come from. Mr. Lawson-Cruttenden for the Claimants asks me in effect to take judicial notice of the fact that to open a bank account on behalf of an association there will have to be formalities complied with, an appointed officer, usually a mandate or resolution from the members of the association and a signatory or signatories to the account. There is no explanation as to who has contributed what part of the funds which amount to the sum the subject of the order appealed against, the basis on which it is held, and whether some of those persons knew of the Order and some did not. Mr. Lawson-Cruttenden's first line of attack therefore is that there is nobody with authority to come to this Court to prosecute this appeal.
6. Leaving that point for one moment, the main ground of the appeal is that it is not appropriate or lawful to enforce a Costs Order against LAA as an unincorporated association, but an application of this nature can only be made against named individual members. SHAC were appointed by the Court to represent LAA but SHAC itself was an unincorporated association at the time of the Order and it is only since then that a named individual has been appointed to represent SHAC. The main thrust of the appeal therefore is that it is not possible to make a Costs Order against the 11^th Defendant but only against the members it represents if they can be identified and named:
7. As Mr. Dally realistically recognised this submission is really therefore an appeal against my Order of 26th May 2004 and not the Master's Order of 1^st March 2005. He accepts that read literally on the face of my Order, against which no appeal was lodged, there is authority for the Claimant to enforce a Costs Order against anyone within the definition of "Protestor", which definition includes any person acting in concert with any of the Defendants and who has notice of the terms of this Order. But he says it would be wrong to construe it so as to make those who have contributed to the funds in the account liable for the costs of the activity if they were not involved in it. He accepts that the wide definition of Protestor in the relevant Orders is acceptable as a necessary device under the "just and convenient" principle enacted by S.37 of the Supreme Court Act 1981 and serves to bring any person within that definition within the grip of the injunctive relief which is at the heart of the Order. But he does not accept that that should apply to liability for costs which he describes as a greater liability and a more serious matter.
8. There are really therefore three main submissions he makes. The first is his bold submission as he accepts that I should now set aside my Order as one which should not have been made, albeit it is very late to do so and he can only invoke the wider interests of justice in making this application. The second is to set aside the Master's Order of 1^st March on the basis that, as part of his Order he should have given consideration to the question of whether the anonymous and unknown members of the 11^th Defendant had sufficient knowledge of the terms of the Order to qualify them as Protestors under the second limb of the definition of that word. His third, and alternative route to success is to invite me to construe my Order of 26^th May so that the permission to enforce contained in paragraph 3 did not include a permission to enforce the Costs Order in paragraph 8, since to do so would render liable for costs any person upon whom the Order was served and those persons might not deserve to have costs liabilities imposed upon them on the merits of the case.
9. He points to the fact that there is a judicial conflict as to whether unincorporated associations are capable of being treated as defendants in the way this Order does. At paragraph 27 and following of his judgment, having heard argument on this point Gibbs J said this:

"There is evidence in relation to several of the individual defendants, some of them indeed from those defendants themselves, that SHAC .... exists as a group. However the nature of SHAC and the extent of involvement in it on the part of these defendants are to an extent in dispute. None of the individual defendants seeks or is willing to represent SHAC. I do not consider it either necessary or just or convenient to direct that any individual defendant should do so. SHAC as outlined is a sufficiently identifiable group to justify its being jointed as a defendant".

He then referred to the cases of Michaels Furriers Limited v Askew and Others Times 25^th June 1983 and EMI Records v Kevin Cudel and Others [1983] Commercial Law Reports 280. He was urged to take this approach and indeed to adopt the definition of Protester by the Claimants in response to the particular dangerous and anonymous and shadowy form of aggression from which, on the evidence presented to him, these Claimants had been suffering. The opposite view was taken by Gross J in Edo MBM Technology Limited [2005] EWHC 837 (QB) at paragraphs 42 to 45. He took a more classical view of the problem, namely that it was not possible to sue a group such as the Defendants in that case unless at the least there were before the Court individuals capable of being sued as representatives of the associations in question.

10. Mr. Lawson-Cruttenden stresses the novel, serious and difficult nature of the attack that his clients say they face from these Defendants and from others. The nature of these attacks is that they come from the shadows, that the groups, while taking full advantage of the media when it suits their purpose, and being astute in the manipulation of publicity, are slow to reveal their supporters and subscribers for reasons that are all too obvious. He acknowledges that these proceedings are unconventional in the way that the problems of the unincorporated association have been addressed but submits that the law should adapt itself to new problems and new ways and that the width of the underlying jurisdiction under 8.37 is sufficient to achieve that purpose. That apart, the specific reference to CPR 19.6(4)(b) in clause three of my Order is sufficient to bring within the grip of the Costs Order members of LAA who will not and have not disclosed themselves. He points out that Ms. Persey was herself represented by counsel before Gibbs J, before he made his Order and had .opportunities to take advice on appealing against or seeking to set· that Order aside and chose not to. The funds in this bank account must be assumed to be the funds of the "members of LAA" even though no formal constitution or membership structure appears to exist. There is no warrant for excluding the Order for costs in paragraph 8 from the permission of the Court to enforce the Order in paragraph 3 and that is what the reference to CPR 19 in paragraph 3 made clear.
11. I am prepared with a little reluctance, to accept not only that Mr. Dally had authority to act as advocate on this occasion (which he did with conspicuous skill, restraint and ability) but that Claire Persey also had authority to instruct him to appear for the 11^th Defendant. I am assuming despite the absence of its formality that it is an unincorporated association, that it has members, that its members must know of these proceedings by virtue of the regular meetings which are held, that they have variously contributed to the funds of the association in the bank, and that none of them has come forward to protest that he or she ought not to be liable to have his or her contribution put at risk by this Order. The novelty of the form of order in this case is plain and the need for it is obvious. This is really an attack upon my Order of May last year and as such comes far too late, and I should also say, comes to the wrong person since I cannot entertain an appeal against my own Order. Therefore when treated as what it is, namely an appeal against the Master's Order of 1^st March, the attack on that Order fails. The Master was entitled to act on the basis that my Order meant what it said and was not under any obligation to consider the position of the hidden or anonymous members of the 11^th Defendant in the absence of any representations by any of them to that effect or to the effect that some part of the funds should be protected from the grip of this Order. I am therefore unable to accede to this appeal and it is dismissed.