National Highways had obtained a series of interim precautionary injunctions restraining apprehended trespass or nuisance linked to protest activity in response to a series of protests carried out by ‘Insulate Britain’ activists. The protests received wide media coverage, and mainly involved protestors sitting on, and gluing themselves to, various roads on the strategic road network, with the M25 and south east being particularly targeted. In due course, National Highways, in line with the authorities, made an application for summary judgment. The application sought final injunctions in materially the same form as the interim injunctions already granted.

After a two day hearing in May 2022, Mr Justice Bennathan found that while National Highways had made out its case for a precautionary injunction, the application for summary judgment could not succeed in relation to the majority of the named and unnamed defendants because it had failed to show that on the balance of probabilities those defendants had already committed the relevant torts which were threatened.

The Court of Appeal has confirmed that there is no need for a claimant seeking a final precautionary injunction to demonstrate that defendants have actually committed those torts, confirming that the essence of a precautionary prohibitory injunction (whether interim or final) is that the tort is threatened and the claimant’s cause of action is not complete. Particularly useful is the Court of Appeal’s confirmation that where a defendant has not served a defence, any evidence, or otherwise engaged with the proceedings that is of “considerable relevance” to the test of whether the defendants had a real prospect of successfully defending the claim. As a result, the Court of Appeal allowed the appeal and granted the final injunction. 

Michael Fry advised National Highways Limited in securing the original interim injunctions, in the High Court, and Court of Appeal.