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10 February 2020
The last twelve months have seen increased efforts by environmental activists to disrupt the business of oil and gas companies (or those associated with them) and draw attention to their campaigns against the use and production of fossil fuels. Public statements by groups such as Greenpeace and Extinction Rebellion suggest that trend is likely to continue, and probably increase in the run up to COP26, to be hosted by Glasgow in November this year.
Two recent cases provide some indication of the extent of any protection which may be sought from the courts in the event of disruption. On 23 January 2020, the English Court of Appeal handed down its judgment in Cuadrilla Bowland Limited ("Cuadrilla") and Others v (1) Katrina Lawrie, (2) Lee Walsh, and (3) Christopher Wilson (the "Protestors")  EWCA Civ 9. Just over a week earlier, the Scottish Court of Session released its decision in Shell UK Limited ("Shell") v Stichting Greenpeace Council and Another ("Greenpeace")  CSOH 7.
In the English case, Cuadrilla v Protestors, three individuals appealed against an order made by HHJ Pelling QC committing them to prison for contempt of court, having found them to have deliberately breached a court order. Whilst the Court of Appeal slightly reduced the prison time ordered (from two months to four weeks), it nevertheless dismissed the appeal and upheld HHJ Pelling's decision.
Cuadrilla is a company engaged in the (onshore) hydraulic fracturing of underground rock for the purpose of extracting shale gas. Protests started on Cuadrilla's site in Lancashire in 2014 and intensified after work in preparation for exploratory drilling at the site started in January 2017. Demonstrations included, for instance, 'locking on' – that is, chaining oneself to an object or another person – at the entrance to the site in order to prevent vehicles from entering or leaving it; 'slow walking' – that is, walking on the highway as slowly as possible in front of vehicles attempting to enter or leave the site; and climbing onto vehicles to prevent them from moving.
Evidence emerged that a protest group was planning and promoting a campaign of sustained direct action targeting Cuadrilla in June/July 2018 with the aim of completely preventing access to and egress from Cuadrilla's site for four days. In light of this, Cuadrilla sought and was granted an injunction against the three individual protestors who brought this case, amongst others, preventing them from trespassing on Cuadrilla's land, unlawfully interfering with Cuadrilla's rights of passage to and from the land, and unlawfully interfering with Cuadrilla's supply chain (the "Injunction"). Nonetheless, the protestors proceeded to enter the site and block the roads either through laying down in pairs or standing in the path of lorries. HHJ Pelling found the protestors guilty of contempt of court for deliberately disobeying the Injunction. As punishment for the deliberate breaches, the protestors were committed to prison. In each case execution of the committal order was suspended on condition that the protestors obey the Injunction for a period of two years.
Amongst other arguments, the protestors contended that the sanction of imprisonment (albeit suspended) was inappropriate and unduly harsh in the circumstances of this case – particularly given the peaceful nature of the protests. The Court of Appeal acknowledged that the protestors were exercising rights of protest protected by the common law and by articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention"). However, it found that "[t]here is no principle which justifies treating the conscientious motives of a protestor as a licence to flout court orders with impunity from imprisonment, whatever the nature or extent of the harm intended or caused provided only that no violence is used". As such, where "individuals not only resort to compulsion to hinder or try to stop lawful activities of others of which they disapprove, but do so in deliberate defiance of a court order, they have no reason to expect that their conscientious motives will insulate them from the sanction of imprisonment".
In October 2019, Greenpeace protestors scaled two of Shell's (offshore) assets: the Brent Alpha platform and the concrete legs of the former Brent Bravo platform. The campaign was coordinated by Greenpeace in order to protest Shell's method of decommissioning. Following the protests, Shell initiated legal action in a bid to stop protestors from boarding any of its Brent installations again. Shell was granted an emergency order from the Court of Session preventing the protestors breaching the 500metre safety zone around the Brent platforms, primarily on the basis that such an intrusion could create serious safety risks to both Greenpeace and Shell staff. Greenpeace claimed such an order breached its right to protest.
In giving judgment, Lady Carmichael gave particular weight to the nature of the installations as private property. She viewed this as "at least a very significant factor supporting the proportionality of the restriction". As such, although the Court of Session was being asked to impose a restriction on individuals' Convention rights, the protestors had no right or title to enter or occupy the installations.
In addition, the Court of Session took account of the fact that the potential for disruption arose particularly in the context of a protest in a dangerous environment. Given the physical state of the installations, protestors were at risk of injuring themselves. Those risks were exacerbated by the fact the installations were unmanned and, as a result, there were no first aid personnel on board who could assist in the event of injury. The conduct was such that it "placed protesters and others in danger".
Given that Shell had raised "safety concerns of substance", and that the protestors had "a wide variety of other locations open to them at which to protest", Lady Carmichael granted Shell the protection it sought. It is notable that, in her judgment, Lady Carmichael referred to HHJ Pelling's decision in the original Cuadrilla judgment.
The above recent cases highlight that the courts in England, Wales and Scotland are willing, and able, to grant court orders (such as injunctions or interdicts) to restrain the nature and scope of protests or direct action against oil and gas companies.
However, whilst the legal remedy itself (whether interdict or injunction, depending on the jurisdiction) is fairly straightforward in nature, the practicalities of obtaining and enforcing it are not. Advance preparation is likely to be of considerable assistance in the event of protestor action. Companies may wish to, for instance:
Those at risk of protestor action ought to carefully assess the measures they have in place in order to respond to protestors, including on an emergency (and out of hours) basis. CMS' dedicated Emergency Response Support Line is available 24/7 and can be accessed on +44 (0)333 20 21 010. The response team are on hand to help clients respond to emergency and out of hours incidents.
For further information on this topic please contact Phillip Ashley, Valerie Allan or Nikola Tait at CMS Cameron McKenna Nabarro Olswang LLP by telephone (+44 1224 62 20 02) or email (email@example.com , firstname.lastname@example.org or email@example.com). The CMS Cameron McKenna Nabarro Olswang LLP website can be accessed at cms.law.
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