Held, B granted permission to apply under CPR r 40.9 and have her submissions taken into account and claimants’ application to extend the injunctions granted subject to certain amendments. (1) The fact that a non-party did not wish to be joined as a defendant was not fatal to an application under CPR 40.9. CPR r 40.9 was a strikingly wide rule and the primary route to be used by non-parties wishing to set aside or vary injunctions against persons unknown. Affording someone the right to be heard under CPR r 40.9 required them to pass through a “gateway”, to satisfy the court that they were (i) “directly affected” by the injunction; and (ii) had a “good point” to raise ie one which was not weak or irrelevant. In order for a non-party to be “directly affected” by a judgment or order for the purposes of establishing locus standi under CPR r 40.9 it was necessary that some interest capable of recognition by the law was, or would be, thereby materially and adversely affected. An order could affect a person in many ways, including financially; their property rights or possession of property; their investments or pension; their ability to travel or to use a public highway; their ability to obtain work or to work; their ability to enjoy private life or social life; and it could affect rights enshrined in the Human Rights Act 1988. Further, a court had to consider whether the final decision in the litigation would adversely affect the interested person, whether by way of civil rights, financial interests, property rights or otherwise. Where orders were sought against unnamed and unknown defendants and where rights were engaged under the Convention for the Protection of Human Rights and Fundamental Freedoms, it was proper for the court to adopt a low threshold for involvement and a flexible/general approach to CPR 40.9, given the nature of such cases; and in a case where the court was being asked to make wide ranging orders and, but for a successful CPR r 40.9 application, would not hear any submissions in opposition to those advanced by the claimants, it was desirable to take a “generous” view of such applications (paras 52, 54, 55, 56, 59, 60, 62, 63, 65, 71, 99, 220(i)).

(2) The court did not retain a residual discretion as to whether to permit a non-party to make an application under CPR r 40.9 once the gateway criteria had been satisfied. The wording of CPR 40.9 simply established the basis on which someone “may” apply to have a judgment or order set aside or varied, but whether they succeeded in doing so was a separate matter. Even had that not been the case, the factors the claimants contended a court should take into account in exercising its discretion supported the view that B should be recognised under CPR r 40.9 and not joined as a defendant: B would not profit from the litigation financially or otherwise; she was not funding the defence of the litigation; she was raising a substantial public interest or civil liberties point; there was a need for a “low” threshold given the draconian and potentially wide nature of the injunctions; and B could be faced with costs risks and difficulties due to orders which she had not instigated; nor was she “controlling the whole or a substantial part of the litigation”. B had provided a credible reason for only applying to the court when she had: she had been willing to live with the injunctions for a year but wished to wait to see if the claimant sought to extend them for a further year; she had acted reasonably promptly once she had become aware of that fact. The court accepted B’s submissions (i) that she could be placed in no worse a position than someone who sought joinder as a defendant who only had to give 24 hours’ notice under the order; (ii) it was consistent with the overriding objective for her to make her application at a hearing when the court would already be reviewing the injunctions, rather than by insisting that the court conduct a further hearing to hear her submissions; and (iii) she was entitled to limit her costs liability in that way. As to the overriding objective, her actions in seeking to have her application dealt with at the review hearing were consistent with CPR r 1.4(2), which provided that active case management included dealing with as many aspects of the case as it could on the same occasion (paras 68, 76, 77–80, 84, 85, 87).

(3) While the claimants’ contentions concerning the limits of CPR r 40.9 would be understandable in conventional cases between two or more named defendants, where a final order had been made after trial and that did not involve an injunction, matters were more complicated in cases involving persons unknown injunctions, primarily because, unlike most court orders, they were not made against known individuals; and because the injunctions so made were the subject of regular review by the court: either at the return date or at a review hearing. At either type of hearing, if a person sought to make submissions under CPR r 40.9, it would be artificial to regard them as only being permitted to do so in relation to the injunction which had already been made, because the very focus of that hearing was whether that injunction should be set aside, renewed or varied in some form. Whilst that was a novel legal point which had not been taken before, the practical position was illustrated by how previous cases had played out. Indeed, the very nature of the ability to “vary” an order under CPR 40.9 illustrated that the right to intervene under that rule was to some degree “forward-looking” (paras 90–92, 94, 95).

(4) It followed that, B was entitled to, and was not too late, to make an application under CPR r 40.9 and, notwithstanding the terms of the injunctions, B not wishing to be joined as a defendant to the proceedings was not fatal to her application. Applying the above principles to the present case, the injunctions were prima facie capable of materially, directly and adversely affecting her recognised legal rights under articles 10 and 11 of the Human Rights Convention (albeit in a manner which was said to be justified), the court having accepted B’s evidence that a final decision in the litigation would adversely affect her civil rights and, if she breached any of them, this would affect her financial interests and expose her to the risk of a prison sentence. Further, and in any event, B had had good points to make on all three injunctions (paras 54, 55, 63, 68–70, 73, 74).

(5) The court was satisfied that unless restrained by continuing the injunctions the defendants would continue to breach the claimants’ rights, conduct causing harm having already taken place, further conduct and harm having occurred at petrol station sites and various statements made by the protest groups indicating their intention to continue with similar activities to put pressure on the Government to halt new investment in fossil fuels. The defendants were not thereby prevented from congregating and expressing their opposition to the claimants’ conduct, including, “in a loud or disruptive fashion”, in a location close to Shell petrol stations, so long as it was not done in a way which involved the unlawful conduct prohibited by the injunctions, which struck a fair balance between the defendants’ rights to free assembly and expression and the claimants’ rights, and they were necessary and proportionate, protecting the claimants’ rights in so far as was necessary to do so but not further. The injunctions would be continued subject to an amendment to reflect that the acts were only prohibited if they caused damage (paras 35–40, 146, 147, 154, 176, 179, 180).