Friends of the Earth forced to withdraw from Cuadrilla injunction challenge after being priced out of court
Friends of the Earth has been forced to withdraw from a legal challenge to a wide-ranging injunction against protests at a Lancashire fracking site, after a legal ruling left the organisation potentially liable for the fracking firm’s full legal costs for opposing the case.
The injunction, granted to Cuadrilla, restricts protest against its fracking operations at Preston New Road in Lancashire.
This week (Monday 2 and Tuesday 3 September), three protesters are due to appear at the High Court in Manchester for sentencing, after being found in breach of the injunction by High Court Judge HHJ Pelling QC in June.
Before the sentencing is determined, the protesters are applying to vary the injunction to try and make it less draconian which, if successful, may impact positively on their sentence. They will argue that sections of the injunction are unlawful following an earlier judgement by the Court of Appeal, in which a very similar injunction granted to fossil fuel firm, Ineos, was substantially reduced.
Friends of the Earth had hoped to join the case against Cuadrilla to advocate for and defend the human rights of the wider public – so-called ‘persons unknown’ – who are covered by the terms of the injunction. The NGO has participated in a number of legal battles against anti-protest injunctions, including the Ineos case.
Friends of the Earth applied for cost protection in the case, on the basis that it was a public interest litigant standing up for the human rights of its supporters and the wider public concerned about fracking. However, High Court Judge Pelling, who also granted the injunction to Cuadrilla in the first place, has refused to grant any costs protection – despite the fact that Friends of the Earth was being threatened by Cuadrilla with an £85,000 legal bill in the event that it lost the case.
This is a financial risk Friends of the Earth cannot afford, and so it has reluctantly been forced to withdraw from the proceedings. The Judge also ruled that Friends of the Earth even had to pay Cuadrilla’s legal costs for opposing its application for cost protection.
In environmental judicial reviews, a cap on legal costs is available and cost protection may also be obtained in non-environmental judicial reviews. However, Friends of the Earth’s case was against a private company, not a public body, and so the issue of costs was less straightforward. Judge Pelling has ruled that cost protection was unavailable, irrespective of the public interest or issues at stake, on the basis that it was private litigation between private parties.
Friends of the Earth Head of Political Affairs, Dave Timms said:
“This ruling is a blow for civil liberties and access to justice. The public’s right to peacefully protest is being severely and unlawfully restricted by Cuadrilla’s injunction. We should be allowed to challenge it without facing huge financial penalties.
“Cuadrilla claim to respect the right to protest but they have done everything they can to stop us getting into court to challenge their draconian and restrictive injunction. The Court of Appeal has already found that a virtually identical injunction granted to Ineos was substantially unlawful, we were simply attempting to ensure the law was applied to this injunction too.
“We are effectively being priced out of justice. The cost ruling means that the rights of the wider public who might be caught by disproportionate injunctions against persons unknown cannot be represented in court by public interest organisations, without taking on huge financial risk. This is especially disturbing given the increase in protester numbers at the Preston New Road site following the recent 2.9ML quake triggered by Cuadrilla’s activities, the largest fracking-induced tremor yet recorded in this country.
“We stand in solidarity with the three defendants in their legal challenge to reduce the injunction and sincerely regret that we will not be able to participate formally in the proceedings on behalf of persons unknown. We will continue to stand up for the right to protest.”
Stephanie Harrison QC, Barrister at Garden Court Chambers, who was due to represent Friends of the Earth, said:
“Powerful private companies, not only governments, can run rough shod over our democracy and the fundamental rights of citizens to be heard and to oppose their activities.
“Private companies deploying their superior resources and financial might to utilise Court proceedings to prevent and deter peaceful protest through pursuing draconian injunctions are a serious threat to our civil liberties.
“The use and misuse of the exceptional measure of proceedings against wide-ranging groups of persons unknown is of particular concern. By definition those persons, whose rights are affected and curtailed, will not be before the Court to defend themselves and without the availability of costs protection campaigning organisations like Friends of the Earth cannot risk the crippling costs of High Court legal proceedings and adverse costs orders to ensure that their voice is heard.
“An urgent review of the use of civil proceedings to regulate free speech and peaceful protest and the implications of these proceedings for access to justice and equality before the law is urgently required.”
Notes to editors:
1. Friends of the Earth was represented in this case by Stephanie Harrison QC and Stephen Clark of Garden Court Chambers, and Michael Oswald of Bhatt Murphy Solicitors.
2. The 2-day court hearing for the committal proceedings dealing with the 3 protestors’ applications to vary the injunction and their sentencing commences on Monday 2 September 2019 at 10:30 in Court 41, Level 9 at the Manchester High Court at 1 Bridge Street West, Manchester M60
3. The 3 protestors are represented by Adam Wagner of Doughty Street Chambers, and Richard Brigden of Garden Court North Chambers, and by Robert Lizar Solicitors.
4.Friends of the Earth is an international community dedicated to the protection of the natural world and the wellbeing of everyone in it. We bring together more than two million people in 75 countries, combining people power all over the world to transform local actions into global impact. For more information visit: https://friendsoftheearth.uk/ follow us at @friends_earth, or like our Facebook page.