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HS2 Successful in Further HS2 Euston Square Tunnel Protest Interim Applications

Saira Kabir Sheikh QC
Michael Fry
Jonathan Welch

This morning (10 February 2021), the High Court (Steyn J), dismissed wide-ranging applications by an activist unlawfully occupying makeshift tunnels beneath Euston Square Gardens in central London. The Judge also granted HS2’s application for a penal notice to be added to terms of the injunction against the activist, so that it be capable of enforcement by committal proceedings in case of continuing breach. 

The occupation has attracted significant media attention:

BBC 

Guardian 

Daily Mail 

By an Order dated 1st February, Robin Knowles J dismissed the Claimant’s urgent interim injunction application and granted HS2’s cross application, thereby requiring the Claimant to remove himself from the tunnels and to provide information about the tunnels and others within them. See previous news item.

The Claimant activist renewed an application seeking injunctions to prevent HS2 from carrying out any further operations to remove the trespassers from the tunnels, amongst other matters. The Claimant sought by further application the insertion of his own self-described “expert” into the extraction operation and disclosure of risk assessments. Despite accepting he had been in breach of the Order of Robin Knowles J for some eight days, the Claimant also sought to set aside the injunction in force against him.

HS2 cross applied for a penal notice to be added to the Order of Robin Knowles J.

Following a full day’s contested oral hearing on 9th February, Steyn J on 10th February dismissed the Claimant’s applications in their entirety, and granted the application of the Defendant, HS2.

In a full and carefully reasoned judgment handed down on 10th February, Steyn J noted that HS2 had complied with the terms of the 1 February Order, but that the Claimant had not complied with the Order and through counsel indicated at the hearing that he had no intention of complying.

On the basis of clear evidence submitted by HS2, the judge rejected contentions by the Claimant and his advisors that the extraction operation was begun without being properly planned and that the operation was defective. The Court noted it “could not reasonably reject the Defendant’s factual evidence, given by those who are present on the site and responsible for the operations there, based on concerns and beliefs expressed by a person who is not involved in the operations and has not been to the site” [26].

In respect of the requests for HS2 to provide food and water to those continuing to occupy the tunnels, the Judge noted that those in the tunnels “are not detained or stuck in the tunnel: they are choosing to remain there as trespassers,” and noted the contention that HS2 has an obligation to supply them with food and water to enable them to remain longer in the highly dangerous situation as “misconceived” [34].

The Judge found there no realistic prospect of the Court finding that HS2 was breaching its duty to take all reasonable steps to protect those in the tunnel under the site [35]. The Judge therefore dismissed the interim relief application by the Claimant, noting that the Claimant “has not come close to establishing a strong enough case to justify the Court stopping the operations to remove those who are in the tunnel, given the compelling evidence as to how dangerous it is for them to remain there” [36].

The Judge found the Claimant’s application to allow his own team access to the highly dangerous tunnel to carry out an inspection to be “extraordinary” [41]. And the application for a site visit and disclosure of confidential risk assessments and operational plans were found to be sought “in the hope that something may emerge which might form the basis of a claim for judicial review. The court will not entertain such a “fishing expedition”” [44]

Agreeing with HS2’s submissions on its cross application, the Judge considered it was necessary to add a penal notice to the Order in circumstances where the Claimant had made express his intention to flout the Court’s order.

A copy of the judgment can be found here.

Saira Kabir Sheikh QC, Michael Fry and Jonathan Welch were instructed by Jim McAvan of HS2 Legal and the Government Legal Department.