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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		10/06/2010

Mr D Pittaway QC:

1. This is an application for a final order in proceedings brought by the claimants for injunctive relief under section 3 of the Protection from Harassment Act 1997 against the defendants. The claimants are five Japanese companies whose business is in the pharmaceutical or chemical industries. The defendants are animal rights activists. Stop Huntingdon Animal Cruelty ("SHAC") and Animal Liberation Front ("ALF") are unincorporated associations and are represented by nominated representatives under CPR 19.6. Dr Gastone and Mr Webb were added as representatives, respectively for SHAC and ALF, by orders made by Irwin J on 17 December 2007 in these proceedings. The background to these proceedings is fully set out in the judgment which I handed down on 16^th March 2010 which I do not propose to repeat.
2. At the outset of the hearing Mr Lawson-Cruttenden applied for three of the individual claimants to be substituted to replace employees who had retired or were now working for the corporate bodies in a different capacity. I granted the applications to substitute Anne Harkin in AGC Chemicals, Folke KindI in Eisai and Dr Hirokawa in the Daichi cases. Written confirmation has been obtained in each of those cases from the individuals concerned that they are willing to be substituted as claimants for the outgoing employees.
3. I was informed by Mr Lawson-Cruttenden that Dr Gastone is unwell and has indicated by an e-mail on 25 May 2010 that he wishes to take no further part in the proceedings or to be considered a suitable representative for SHAC. Mr Lawson- Cruttenden has produced the correspondence between his firm and Dr Gastone since the hearing at which I entered summary judgment. Dr Gastone has not raised any matters relating to the proposed draft orders in the 5 cases following the directions I gave on 16 March 2010. Mr Lawson-Cruttenden informs me that Dr Gastone did appear at the hearing before HH Judge Seymour on 24 March 2010 of the final order in Novartis Pharmaceuticals UK Ltd v SHAC but withdrew at lunchtime because of ill-health. On 2 June 2010 Dr Gastone sent a witness statement to Mr Lawson- Crittenden which repeats his position that he wishes to take no further part in the proceedings or to be considered a suitable representative for SHAC. No formal application has been made by him under CPR 19.6.3 to be removed as the nominated representative for SHAC.
4. It seems to me that Dr Gastone remains the nominated representative of SHAC for the purposes of these proceedings until such time as an application made by him under CPR 19.6.3 has been determined in his favour to remove him as a representative. Of course if he remains a representative it remains open to him to apply to vary or discharge the order. Before he had heard from Dr Gastone, Mr Lawson-Cruttenden wrote to the address on the court record for substituted service, which is also the address on the SHAC website, informing SHAC that Dr Gastone had not replied to correspondence following the judgment on 16 March 2010 and asking for information about future representation. No response has been received from SHAC.
5. The position of Mr Webb falls into a different category in that prior to the hearing on 9 February 2010 he had indicated by letter on 22 December 2009 that he would submit to an order in each case in a similar form to that made in the case of SmithKline Beecham PLC & Others v Greg Avery & Others [2009] EWHC 1488 (QB) made by Jack J on 26 June 2009. After the judgment I gave on 16 March 2010 there has been further correspondence between Mr Lawson-Cruttenden and Mr Webb relating to amendments to the draft order prepared by Mr Lawson-Cruttenden which are now agreed. Mr Webb was away on holiday until 25 May 2010 when he was written to and asked to confirm the content of the draft orders. No response has been received from Mr Webb.
6. Following their conviction for criminal offences at the Winchester Crown Court on 21 January 2009, Mr and Mrs Avery and Ms Nicholson are serving long sentences of imprisonment and have taken no further part in these proceedings. They were served with application notices and the witness evidence in support by letter dated 18 December 2009. Mrs Avery and Ms Nicholson have both indicated in writing to Mr Lawson-Cruttenden's firm that they do not wish to receive any further correspondence relating to these matters. No response has been received from Mr Avery.
7. I am asked on behalf of the claimants to make final orders in each of the claimants' actions against SHAC, Mr and Mrs Avery and Ms Nicholson. The draft orders are in substantially the same terms as the orders that have been previously made in SmithKline Beecham PLC & Others v Greg Avery & Others [2009] EWHC 1488 (QB) made by Jack J on 26 June 2009 and in Novartis Pharmaceuticals UK Ltd v SHAC made by HH Judge Seymour QC on 24 March 2010. However, Mr Lawson- Cruttenden has drawn my attention to a number of matters where there are differences.
8. The only matter which requires consideration in this judgment relates to paragraph 4.2 of the proposed order which provides that the definition of defendant for the purposes of section 3(6) of the Protection from Harassment Act 1997 includes protestors. I am informed by Mr Lawson-Cruttenden that at the time the interim orders began to be granted in these cases, in particular substantive interim injunctions granted by Owen J on 13 October 2003, there was doubt that the provisions of the Act applied to corporate bodies who sought to bring proceedings on behalf of employees against animal rights organisations. The position was altered by an amendment to the Act contained in the Serious Organised Crime and Police Act 2005 which came into force on 1 July 2005. Notwithstanding the amendment the interim injunctions granted by Owen J continued in the same form in these cases with only minor amendments.
9. The amendment to the Act in 2005 was explained by Jack J in his judgment in SmithKline Beecham PLC v Greg Avery which I adopted in paragraph 16 of the judgment I handed down on 16 March 2010 and, for convenience, repeat here:

"40. The Protection from Harassment Act 1997 was amended by the Serious Organised Crime and Police Act 2005 as from 1 July 2005. The scheme of the Act prior to amendment had been construed to provide protection from harassment for individuals only. I refer to DPP v Dziurzynski [2002] EWHC 1380 at paragraph 33, and Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34, [2007] 1 AC 224 at paragraph 19. It ivas submitted on behalf of the corporate claimants that the amendments permitted them to seek an order under the Act. This was denied on behalf of Mr Webb and Dr Gastone.

41. The scheme of the Act in relation to England prior to the amendment was that section 1(1) provided that a person must not pursue a course of conduct amounting to harassment of another, and which he knew or ought to have known would do so. By section 2(1) pursuing a course of conduct in breach of section 1(1) was made a criminal offence. Section 3(1) provided that a breach or apprehended breach of section 1(1) might be the subject of a civil claim by the victim. Section 3(2) referred to damages. By section 3(3), where an injunction had been granted and the 'plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction', he might 'apply for the issue of a warrant for the arrest of the defendant'. Section 3(6) made breach of an injunction a criminal offence. Section 7(1) provided that reference to harassing a person include alarming the person or causing the person distress. Harassment is not otherwise defined.

42. The amendments to the Act are as follows. A new section 1(1A) provides that a person must not pursue a course of conduct which involves the harassment of two or more people, which he knows or ought to know would do so, and: "(c) by which he intends to persuade any person (whether or not one of those mentioned above) - (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do." Section 2 was amended to make breach of section 1(1A) an offence. A new section 3A was inserted to enable any victim of an actual or apprehended breach of section 1(1A) by any person, or any person falling with section 1(1A)(c), to apply for an injunction restraining that person from harassing 'any person or persons mentioned or described in the injunction'. Importantly, a new section 7(5) was added as follows: "(5) References to a person, in the context of the harassment of a person, are references to a person who is an individual. " A new section 7(3A) provides that, if a person's conduct is aided, abetted, counselled or procured by another, that conduct shall additionally be taken to be the conduct of the other.

43. By section 5 and schedule 1 of the Interpretation Act 1978, in a statute, unless a contrary intention appears, "Person" includes a body of persons corporate or unincorporated. ' That is the context in which section 7(5) is to he understood. Section 7(5) is necessary because otherwise there is the possibility that the sections of the Act including the new section 1(1A) could be read as covering companies who are harassed. Section 7(5) makes it clear that this not so. By making that clear it also makes clear that it is only the victims of harassment who are so limited. So 'person' in section 1(1A)(c) is not limited to individuals and may be a body corporate. Thus a company may apply for an injunction pursuant to section 3A where the company falls within section 1(A)(c). The White Paper which preceded the Act made this intention very clear, but, there being no ambiguity, there is no need to refer to it. It was suggested that this construction gave rise to difficulties with sections 5 and 5A. I do not think that this is so. I conclude that the corporate claimants are entitled here to claim relief under section 1(1A) of the Act."

10. During the course of the hearing on 27 May 2010 I raised whether the issue regarding enforcement, civilly or criminally, against non-parties, namely protestors, had been considered in other cases. Subsequently, Mr Lawson-Cruttenden sent me 2 further cases, RWE NPower & another v Malcolm Carroll & others [2007] EWHC 947 (QB) and SmithKline Beecham PLC v Greg Avery [2007] EWHC 948 (QB), both cases are decisions of Teare J in which he reached similar conclusions. As a result of reading the cases I offered Mr Lawson-Cruttenden the opportunity to provide further written submissions on whether the definition of defendant for the purposes of section 3(6) of the Protection from Harassment Act 1997 included protestors, which he accepted. The matter is of some importance because of the reluctance of some police forces to exercise the power of arrest against protestors for a suspected breach of section 3(A) of the Act.
11. At the interim hearing in SmithKline Beecham PLC v Greg Avery Teare J considered the position regarding enforcement, civilly and criminally, against protesters when he held:

"26. The final point with which I must deal concerns paragraph 19 of the draft order:

"The Claimants be permitted to enforce this order against the Protestors pursuant to CPR 19.6(4)(b)."

27. Counsel required this in order that the police might be able to exercise their powers of arrest where a protestor broke the terms of the injunction and so, it was said, committed an offence contrary to section 3(6) of the Protection from Harassment Act 1997. Whether CPR 19.6(4)(b) can properly be used in this way raises a question which also arose before me in a case which I heard immediately before this case and which arose before Holland J. in Huntingdon Life Sciences Group PLC and others v Stop Huntingdon Animal Cruelty [2007] EWHC 522 QB Holland J. did not allow the rule to be used in this way and I was urged by Dr. Max Gastone to follow that decision.

28. CPR 19.6(4) provides:

"Unless the Court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule-

(a) is binding on all persons represented in the claim; but

(b) may only be enforced by or against a person who is not party to the claim with the permission of the court. "

29. Section 3(3) and (6) of the Protection from Harassment Act 1997 provides:

"(3) Where-

(a) in such proceedings the High Court or a 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 a county court grants an injunction for the purpose mentioned in subsection (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"

30. Injunctions made under the Act may thus be enforced, not only by the usual civil remedies of contempt but also by the criminal law.

31. Representative parties are creatures of CPR 19.6. Sub-rule (4) expressly deals with the question whether an order is binding upon a person "represented in the claim" and whether an order may be enforced against a person "who is not a party to the claim."

This rule has, as I have indicated, recently been considered by Holland J in Huntingdon Life Sciences Group PLC and others v Stop Huntingdon Animal Cruelty [2007] EWHC 522 QB when an enforcement provision similar to the one made without notice in the present case was sought but not pursued after Holland J. raised a question as to the propriety of the provision. Holland J. was asked to record his reasoning. He said as follows:

"42. Turning to the proposed Final Order it serves expressly to restrain conduct which amounts to harassment within the meaning of the Act. The issue that does arise is as to who is or could be a Defendant for the purpose of enforcement, whether civilly or criminally, given reliance upon representation as provided for by CPR 19.6. The answer lies in CPR 19.6(4):

"Unless the Court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule (a) is binding on all persons represented in the claim; but (b) may only be enforced against a person who is not a party to the claim with the permission of the Court."

43. In the result, first, this Final Order will be binding upon "protestors", that is upon those within the wider ambit of Dr. Gastone's representation. That said, second, it is not enforceable, certainly civilly, against any individual without the express permission of the Court. This reflects a safeguard introduced into CPR 19.6 to counter risks implicit in having a wide and ill defined catchment area in terms of affected persons. The discretion is specifically drawn in this context between 'binding' and 'enforcing': HLS have the benefit of a binding Order but if they wish to enforce it against any individual then they must seek ad hoc permission from the Court, presumably based upon proof of such factual circumstances as to would serve to justify enforcement as for a contempt. By purporting to accord CPR 19.6(4)(b) permission in advance the Court would in effect be circumventing the CPR 19.6 concerns by predicting circumstances serving to justify enforcement when such must as to any individual case be a matter for speculation as at the making of the Order."

32. I respectfully agree with the approach of Holland J. CPR 19.6 expressly addresses the question as to when an order may be enforced against a person who is not a party to a claim. The answer is that an order may be enforced against such a person "with the permission of the Court." In the case of orders made under the Protection from Harassment Act 1997 the order may be enforced either civilly or criminally. But there is no reason why the need for the permission of the Court should not be required equally whether the claimant wishes to enforce an order by civil means or wishes to have it enforced criminally.

33. Until permission to enforce against a person represented in the claim is granted I do not consider that a person represented in the claim can properly be regarded as a party to the claim. An illustration of the use of CPR 19.6 and its predecessors is to enable proceedings to be brought against unincorporated associations. An unincorporated association has no legal personality and so cannot be a party to a claim. It can therefore only be sued so long as there is a person who can represent the association as a defendant; see Oxford University v Webb [2006] EWHC 2490 per Irwin J., paras. 42-62.

34. Once the claimant identifies a natural person who is a member of the unincorporated association or is otherwise within the class of persons represented by a named defendant and obtains permission from the Court to enforce the order of the court against that person the latter is in my judgment party to the claim. The order is binding upon him and the Court, having addressed his individual circumstances and afforded him an opportunity to make representations, has ordered that the injunction may be enforced against him. Until the claimant sought permission to enforce the injunction against him (or her) the latter was not before the Court.

35. In the present case the Claimants seek permission to enforce the injunctions granted by this court in advance and without identifying the natural persons against whom, in addition to the named defendants, the order may be enforced. If this were a legitimate use of CPR 19.6(4)(b) it would mean that the court would have no opportunity to consider whether the circumstances of any particular individual (not being a named defendant) justified enforcing the court's against him before it was enforced against him. CPR 19.6(4)(b) ensures that such an individual will have an opportunity to make submissions as to whether the court's order should be enforced against him before it is so enforced. The Claimants' approach would deny him that opportunity.

36. I have therefore decided not to accede to the Claimants' request and to delete paragraph 19 from the order."

12. Mr Lawson-Cruttenden's submissions rely primarily upon the argument that the learned judge did not consider in either RWE NPower v Malcolm Carroll or SmithKline Beecham PLC v Greg Avery whether for the purposes of section 3(6)(b) the term "relevant person" can be substituted for "defendant" under section 3A(3) which applies the provisions of section 3A to, amongst others, section 3(6). He submits that the provisions of section 3(6) have been enlarged by the insertion of section 3(A) in the Act by the Serious Organised Crimes Act in 2005 to permit injunctive relief being obtained against unnamed parties who are not defendants. He submits that the effect of section 3A is that the word "defendant" in section 3(6) should now include protestors who are not named defendants. He has included in the documents before the court two certificates of conviction from the Huntingdon Magistrates Court which indicate that two protestors who were not named defendants were convicted of offences contrary to section 3(6) of the Act. He also relies upon section 110 of the Serious Organised Crime Act 2005 in particular the provision at the substituted section 24(5)(e) of the Police and Criminal Evidence Act 1984 relating to the exercise of the power of arrest, namely "to allow for the prompt and effective investigation of the offence or of the conduct of the person in question".
13. It seems to me there is no proper distinction between the judgment of Holland J in HLS v SHAC and of Teare J in SmithKline Beecham PLC v Greg Avery. Both judgments make the distinction between the order being binding on a non-party but not enforceable without the permission of the court. I adopt the view expressed by Teare J in SmithKline Beecham PLC v Greg Avery that it applies equally to the situation where the injunction is being enforced civilly or criminally.
14. Section 3(6) of the Act provides that the defendant is guilty of an offence where without reasonable excuse he does anything which he is prohibited from doing by the injunction. If it is correct that the effect of section 3A was to substitute "relevant person" for "defendant", then, the provisions of CPR 19.6.3 that the order may only be enforced against a person who is not a party to the claim with the permission of the Court would be circumvented. Whilst I accept that section 3A widens the scope of the Act to encompass non-parties, I do not consider that the provisions of CPR 19.6.3 relating to a non-party should be circumvented, civilly or criminally.
15. Mr Lawson-Cruttenden's submission that Teare J's judgments are concerned only with civil proceedings is untenable on close examination of his judgments in RWE NPower v Malcolm Carroll and SmithKline Beecham PLC v Gregg Avery when he specifically considered the issue regarding the exercise of the power of arrest.
16. At paragraphs 32 and 33 Teare J in SmithKline Beecham PLC v Gregg Avery said:

"37. I recognise that the Claimants desire to achieve certainty so that the police know whom they may arrest upon the grounds that there has been a breach of the injunction; see section 3(6) of the Act. However, for the reasons I have given, I do not consider that that concern can be met by declaring that the injunction may be enforced pursuant to CPR 19.6 against unnamed persons without their individual circumstances being addressed by the Court. (It is to be noted that the problem does not arise where a person pursues a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. That is an offence independently of the injunction; see section 2 of the Act. The problem only arises in the context of activities lawful in themselves but which are restrained by injunction. )

38. There may be other ways in which the Claimants' concerns (which I suspect are shared by the police) can be met. The injunction is certainly binding on those who fall within the class of person represented by the First Defendant. It may be that that enables such persons to be regarded as "defendants" for the purposes of the Act (applying a broad and purposive construction of the Act) and that an arrest may be regarded not as part of the process of enforcement (prosecution and conviction) but as a preparation for that process. But is not appropriate for me to determine whether or not the Claimants' concerns can be met in this way assuming a hypothetical case and without hearing submissions from the prosecuting authority and the defendant in that prosecution. "

17. I also adopt the view expressed by Teare J in SmithKline Beecham PLC v Gregg Avery that it would not be appropriate for me to determine whether the exercise of the power of arrest against a non-party in a hypothetical criminal case was a preparatory step or part of the process of the enforcement of the order without hearing submissions from the prosecuting authority and the defendant in that prosecution. It does not seem to me that section 110 of the Serious Organised Crime Act 2005, in particular the provision at the substituted section 24(5)(e) of the Police and Criminal Evidence Act adds anything to the matter. Whilst I am referred to two cases in which non-parties have been successfully convicted of offences under section 3(6) of the Act I know nothing of the circumstances of those convictions, in particular any advice given by the Clerk to the Justices to the magistrates sitting on the cases. They are only useful to me as two examples of where convictions have taken place.
18. In these circumstances I make the order in the terms of the proposed draft subject to (1) the minor amendments discussed during the course of the oral hearing and (2) the removal of the passages which refer to the definition of defendant for the purposes of section 3(6) of the Protection from Harassment Act 1997 including protestors. Mr Lawson-Cruttenden has asked that the two Daiichi Sankyo actions be consolidated which I am prepared to order. I also direct that Dr Gastone shall have permission to apply for his removal as the nominated representative for SHAC on 7 day's notice in writing.