An interesting comparison is to be made between those who seek to protest both by blocking roads, and using social media to allegedly cause trespass and harassment, and those that simply block roads, allegedly causing trespass and nuisance as an act of protest.
In MBR case judgment is attached below, the Court concluded that there should be the bare minimum done in the interim to enable protest. A prohibition on trespass, and a zonal order on the space directly in front of the Claimants property. Even that bare minimum had a considerable effect on the protest, but was far removed from the injunction granted in the National Highways case, including against persons unknown.
The case also noted the procedural differences where there is an allegation of harassment that relates to publication, and the real need to focus a claim.
The National Highways case has received recent publicity, because of the committal proceedings. The underlying order against named and unknown parties provided provided that:
"2.1 Blocking, endangering, slowing down, preventing, or obstructing the free flow of traffic onto or along or off the M25 for the purposes of protesting.
2.2 Causing damage to the surface of or to any apparatus on or around the M25 including but not limited to painting, damaging by fire, or affixing any item or structure thereto.
2.3 Affixing themselves ("locking on") to any other person or object on the M25.
2.4 Erecting any structure on the M25.
2.5 Tunnelling in the vicinity of the M25.
2.6 Entering onto the M25 unless in a motor vehicle.
2.7 Abandoning any vehicle or item on the M25 with the intention of causing an obstruction.
2.8 Refusing to leave the area of the M25 when asked to do so by a police constable, National Highways Traffic Officer or High Court Enforcement Officer.
2.9 Causing, assisting or encouraging any other person to do any act prohibited by paragraphs 2.1-2.8 above.
2.10 Continuing any act prohibited by paragraphs 2.1-2.9 above."
Interesting a number of the civil prohibitions were also criminal in nature, it is unclear how if there were no criminal prosecution and party could be allowed to prosecute what is otherwise a criminal matter.
Oddly term 2.6 seems to suggest that persons are now excluded from riding on a motorbike on the M25, but could drive a milk cart (prohibited by law normally on a motorway), as the order permits it. The terms of the prohibition all seem very odd, and things that are already prohibited by the law. There may well be definitions that get around these issues.
However they are on any reading and especially as they are against persons unknown wide ranging and rather specific, for interim relief. Why the same effect could not have been achieved by zonal orders prohibiting protest on the M25 as was done in the MBR case.
The committal case also made clear that a Defendant must choose to access legal aid, and that once they were aware of it, that was all that really had to be done. There will be cases in the future, it is clear that will show that in some areas finding a solicitor to act under legal aid, is often an impossible obstacle to accessing legal aid.
The Supreme Court have brought to an end, a long running committal cases, between Nobu Su, and Lakatamia Shipping Company Limited, heard before the High Court between the issue of the application on the 27 March 2020 and the refusal of permission to appeal to the Supreme Court on the 29 October 2021.
The case first came before the Court on the 3 April 2021, before Mr Justice Foxton, to deal with expedition, and other matters 3 April 2020 . The Committal application continued, with an agreed amendment in May 2020, bring in further allegations.
Mr Su, declared himself bankrupt, and the process of collection of his debts started.
In October 2020, Mr Su was back before the Court in relation to the underlying civil case. Mrs Justice Cockrill described "Mr Su's name will be familiar to any student of modern commercial litigation. He is a gentleman who has gone by various names over the years, including Nobu Su, Su Hsin Chi and Nobu Morimoto. Over the past 10 years Mr Su has been embroiled in a substantial number of civil court proceedings in England and Wales and elsewhere." That judgement described the long and embattled history between Mr Su and the Claimants 30 October 2020
In December 2020, a further amendment, the second was sought. The matter came before Mr Justice Calver, and permission was granted to add the further allegations. 11 December 2020
On the 1 April 2021 on review Deputy ICC Judge Passfield determined that Mr Su was within the Jurisdiction such that he could claim to be bankrupt.
In April 2021, it came before Sir Michael Burton, who dealt with issues relating to continuation of the passporting orders, in light of Mr Su, then being found to be bankrupt. 15 April 2021
In June 2021 Mr Su admitted to the contempts, and sought that he was sentenced at the further hearing of the matter.
In July 2021 Mrs Justice Bacon determined that Mr Su was not within the jurisdiction for the purpose of bankruptcy, and so determined that his bankruptcy would be annulled. 1 July 2021
on the 7 July 2021, Mr Su having admitted the contempt's, came back before Sir Michael Burton, for the third time to be sentenced. On this occasion Sir Michael determined that the proper sentence for Mr Su, was the maximum sentence of two years of imprisonment, despite mitigation and a guilty plea. 7 July 2021
That sentence was widely reported in the Daily Mail and other newspapers
Mr Su appealed to the Court of Appeal on the 8 September 2021, for an appeal before Lady Justice Carr and Lord Justice Arnold, that appeal upheld the sentence, on the basis that it was an exceptional case, and as such despite there being mitigation, a maximum sentence could still be applied. Permission to appeal was refused but it was certified as a point of public importance. 15 September 2021
On the 29 October 2021, the Supreme Court refused permission to appeal bring to an end the litigation in respect to committal. There will no doubt be considerable on going issues relating to the debt and other matters.
Adam is a solicitor advocate, and regularly appears in the High Court and Court of Appeal dealing with some of the most complex and interesting public law cases.