Injunctions against persons unknown: Getting it right

United Kingdom


The High Court had granted injunctions to Ineos Upstream and others against persons unknown, who were thought to be likely to (but had not yet) become protesters at the claimants’ sites, which were used for fracking.

The injunctions restrained persons unknown from doing acts such as trespassing on the claimants’ sites, interfering with access to the sites and causing anything to be done on a road or interfering with any vehicle or traffic equipment which could be dangerous. The defendants (i.e. the persons unknown) were classified according to these acts.

Permission to appeal against these injunctions was granted and heard by the Court of Appeal. The court upheld some of the injunctions and discharged others.

Tips for applying for an injunction against persons unknown

  1. Focus on the actions that you are trying to prevent – do not include an assessment of a person’s state of mind or try to obtain a wider injunction than necessary, even if this means having to later obtain a new injunction to cover another action.
  2. Use clear and specific wording that a lay person can understand – do not be ambiguous or use legal terminology.
  3. Injunctions relating to multiple sites and where some of the sites are not yet affected, can be obtained, if you can show that there is likely to be a problem at those sites in the future.
  4. Evidence of an act happening on a different site not owned by the applicant can be relied on to seek an injunction restraining that act on the applicant’s site.

Can the court make an injunction against persons unknown?

The first issue was whether the injunctions made against ‘persons unknown’ were lawful. The court held that there is no prohibition on bringing claims against people whose identity is not yet known.

The test for injunctions against persons unknown

Applications for injunctions against persons unknown should not be lightly sought or granted and the following test must be met:

  1. there is a sufficiently real and imminent risk of a tort being committed to justify ‘quia timet’ relief – injunctions which contemplate that an act and damage might occur are known as ‘quia timet’ injunctions;
  2. it is impossible to name the persons who are likely to commit the tort unless restrained;
  3. it is possible to give effective notice of the injunction and for the method used to give notice to be set out in the order;
  4. the terms of the injunction correspond to the threatened tort and are not so wide that they prohibit lawful conduct;
  5. the terms of the injunction are sufficiently clear and precise to enable people potentially affected to know what they must not do; and
  6. the injunction has clear geographical limits and time limits.

In this case, there was no difficulty establishing the first three elements of the test, but difficulties arose with the remaining three.

The injunction must not prohibit lawful conduct

On the fourth element of the test, the court held that, whilst the right to freedom of peaceful assembly exists in both common law and under Article 11 of the ECHR, this right does not include the right to trespass on private property.

The judge was also of the opinion that citizens’ right of protest should not be diminished by fear of potentially committing an offence, except where the potential offence was clear (which would include an offence of trespass).

The terms of the injunction must be clear and precise

On the fifth element of the test, the court held that some of the terms of the order were too wide and insufficiently clear. One of the injunctions granted restrained the defendants from doing acts described as ‘slow walking’ and ‘unreasonably obstructing the highway’, ‘without lawful authority or excuse’ which required the assessment of the defendants’ intention.

The problem with this is that slow walking is not defined and too wide; assessment of unreasonable obstruction is a question of fact and degree and cannot be pre-assessed; a person exercising legitimate rights of protest is unlikely to have full knowledge of what would be lawful authority or excuse; and the subjective intention of the individual is not necessarily known to others and is susceptible to change.

The injunction must have clear limits

On the sixth element of the test, the judge held that the injunctions granted against the first and second defendants had acceptable geographical limits, but no time limit, which was unsatisfactory.

Human rights issue

The Human Rights Act 1998 applies if a court is considering whether to grant any relief which might affect the exercise of the right to freedom of expression. This test provides that no such relief can be granted to restrain trespass before trial, unless the court is satisfied that – at trial – the applicant is likely to establish that trespass should not be allowed.


The following orders were discharged:

  1. The order restraining persons unknown from interfering with access to public rights of way to some of the sites; and
  2. The order restraining persons unknown from obstructing free passage along a public highway; and causing anything to be done on a road or interfering with motor vehicle or traffic equipment, when to do so would or could be dangerous.

The following orders were maintained, pending remission to the judge to consider the Human Rights issue and appropriate time limit:

  1. The order restraining persons unknown from trespassing at the Claimants’ sites; and
  2. The order restraining persons unknown from interfering with access to some of the sites which were accessed by private access roads.

Further reading

The judgment: Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515.

Our Law-Now on a previous injunction against persons unknown.