What has happened in England?
The High Court of England and Wales has granted a route-length injunction to HS2 Ltd to prevent unlawful protesting along its high-speed railway from London to Crewe.
The injunction – which makes going on to land connected to HS2 without permission or disrupting work on HS2 unlawful – means someone who enters or remains on the affected areas without consent risks being found in contempt of court.
The court order, unusually, applies not only to 59 identified individuals but also to "persons unknown" who enter the land covered by the court order.
The judge granted the order as he was satisfied that there had been "significant violence, criminality and sometimes risk to the life of the activists, HS2 staff and contractors” and that “trespass and nuisance” would continue unless the injunction was granted.
A Scottish Perspective
The decision is likely to be of interest to landowners in Scotland. Securing your property and ensuring that unauthorised occupiers are kept from your land is of obvious utility – prevention is often better than cure.
Could we see such a wide-ranging injunction in Scotland (where it would be known as an interdict)?
In Scotland, an interdict is an order granted by the court which prevents an individual or identifiable legal person (such as a company or partnership) from carrying out a particular act or action. It can be sought when there is either a wrong being committed, or when the innocent party has a reasonable apprehension that a wrong will occur. Those wrongs can arise in a wide variety of circumstances, and can include matters such as breach of contract, nuisances, or unlawful entry to a property. Such orders can be obtained extremely quickly if justified in the circumstances.
In Scotland, however, it is only competent to interdict an identifiable person or legal person. That person has to be named in the court action and must be violating or threatening to violate your rights. There is also a warning system in Scotland – known as a caveat – which can be used to stop immediate interdicts being granted against you without you first having a chance to tell the court your position. This only works if interdicts are restricted to persons who are identified in the court action.
For that reason, the current position in Scotland is that only the 59 identified individuals could be subjected to such an order. If unknown persons entered on to land, causing disruption or damage, then a separate court process is required to remove them – an example of such a situation is covered in our earlier blog available here.
If you have concerns about managing or securing your land, please get in touch and we can explain your options.