The Most Innovative Law Firm in Europe. Shale Gas Toolkit. Managing Protest Action Part 4

Transcription

1 The Most Innovative Law Firm in Europe Shale Gas Toolkit Managing Protest Action Part 4

2 Part 4: Introduction The recent commitment to the exploitation of shale gas through fracking has given rise to well publicised environmental concerns which will be very familiar to those in the industry. In recent weeks, however, with the commencement of exploratory drilling at certain sites, matters have escalated and culminated in the very high profile and extremely costly protest action covered by the national media. It is estimated that as well as the delay caused by the temporary suspension of works, policing the anti-fracking protests at Cuadrilla s test drilling site in Balcolme, West Sussex has cost 2.3 million and that this will reach 3.7 million by the end of September. Legal action to evict the protesters is ongoing but poses risks to Cuadrilla s drilling timetable particularly given the imminent expiry of its consent covering exploratory works. It is an unfortunate consequence of any industry that it can find itself facing unwanted third party protest activity, from well known environmental non governmental organisations who believe that a company or sector is operating in a manner to which attention should be drawn, to local residents angered by proposals affecting their local area. 1

3 Shale Gas Toolkit Shale Gas Toolkit: Part 4 Business Disruption Managing the consequential disruption to business can be a serious and time consuming diversion from day to day responsibilities and can be expensive. Accordingly action needs to be devised in such a way as to minimise disruption and expenditure putting companies back in control. Types of Action Depending on the circumstances of an individual case, civil action (as opposed to criminal sanctions usually dealt with by the police and therefore not under the control of an individual landowner) can take various forms: Injunctions (interdicts in Scotland) preventing trespass Orders for possession of land occupied by trespassers Injunctions preventing harassment and/or misuse of private information Injunctions against workers unions preventing illegal strike actions Injunctions against individual employees preventing illegal strike action. Injunctions preventing trespass and possession orders are the most commonly required. Injunctions these are used to restrain trespass either before this takes place at all or once it has commenced to avoid further escalation. Possession orders these are used to recover possession of land from those already trespassing. To make a claim for a possession order, the claimant must have an interest in the land over which the possession order is sought. It may be that a combination of the above mentioned types of injunction will apply to a particular scenario, for example, where part of the land occupied is third party land such as public highway. The police are often more willing to intervene and pursue criminal sanctions for the benefit of parties who have attempted to enforce their civil remedies and they are obliged to support the enforcement of orders obtained in this way. 2

4 Key Tactical Considerations Timing Moving quickly is of critical importance. This prevents any arguments about a landowner having consented to a protest and deprives protesters the opportunity to mobilise and escalate matters increasing the cost and complexity of any operation to remove them. Appointing the right experts including process servers, specialist barristers and enforcement agents can assist in this regard. Advance Preparation Considering strategy in advance is also key. Much of what becomes necessary in the event of protest action can actually be looked at and prepared for well before any direct action is taken. This includes establishing an escalation procedure, putting together a response team, agreeing a chain of command, agreeing the company s approach to publicity, collating key documents and even preparing draft court papers. Advance planning can significantly reduce the amount of time it takes to recover possession of an affected site to hours/ days rather than weeks. Human Rights Increasingly human rights issues are a factor and are being considered alongside traditional procedural and property law rules in the area of protest. Protesters are becoming more sophisticated and relying on arguments specifically designed to delay enforcement action. Traditionally, human rights arguments have assisted in this respect although recent cases have limited the effectiveness of these. Knowing how to respond to arguments based on human rights grounds is critical to ensuring protesters are quickly and effectively removed. It is also an important consideration from a publicity perspective as it is often human rights arguments which attract the attention of the press and give rise to reputational issues for companies targeted by protesters. Practical Tips Step up security where there is deemed to be a risk of protest action. It is much quicker and cheaper to prevent a protest than end one that has already started Contact the police immediately and identify the relevant police liaison officer as soon as possible as this individual will be key to strategy and assisting enforcement officers with the eviction process in due course Provided there is risk of harm to people or property (which is best proved via an urgent health and safety audit), consider making any claim in the High Court instead of the local County Court as the High Court is quicker and also has more experience of dealing with protest action and the specialist issues that arise in such cases Do not ask the identities of the individual protesters. This will require individually drafted sets of court papers and makes service of these more difficult as they need to be handed to the individuals themselves. Instead, proceed against persons unknown who can be included in one set of proceedings and served by the display of court papers in conspicuous places around the protest site Line up agents to serve proceedings in advance so the time they require to reach site and serve papers can be built into any court order requiring service by a particular deadline Have a team available to assist on site with urgent copying of court papers (which can be lengthy) and preparation of court papers into packs for service. Often numerous copies are required due to the size of the site. Having an effective photocopier, printer and fax machine on or near the site of the protest is essential Include a covering letter with court proceedings containing contact details for an individual who protesters ought to contact to request details of any court hearing. This prevents protesters arguing they were unable to participate and appealing any order on this basis. Monitor campaign/protest groups activity on social media. This will assist in anticipating the timing, location and size of possible future protests and will, if necessary, enable the company to identify any unlawful content being posted by protesters (e.g. the publication of senior officer s private information which could require an urgent injunction application). 3

5 Shale Gas Toolkit Shale Gas Toolkit: Part 4 Market Leaders Pinsent Masons LLP are market leading experts in obtaining emergency injunctions to restrain unlawful activity by protesters and obtaining orders for possession. We are the only firm to offer this expertise throughout England and Wales, Scotland and Northern Ireland which means we are ideally placed to assist companies with cross border interests. We can assist in the following ways: Guiding companies through the relevant legal procedures and assisting those responsible for business continuity and brand protection Working with companies to establish an escalation procedure and assisting in putting together a response team. We have significant experience of working with customising procedures for large and complex organisations Identifying and assisting to collate key documents and preparing draft court papers so that proceedings can be issued quickly should the need to evict protesters arise Appointing experienced experts and liaising with them/the police in relation to any injunction and/or possession order(s) required/ obtained and its/their enforcement. Our contacts with the leading high court enforcement officers and other specialist agents throughout the UK enable us to provide an unrivalled service which is fast, efficient and cost effective. One of our associates is also a former police officer and as a result has hands on experience of the eviction process and an extensive network of relevant contacts. Acting for you in any court proceedings in the event these become necessary. As a result of our extensive experience we have developed excellent working relationships with a number of barristers who have relevant experience and who we can instruct on very short notice. The availability of our experienced in house solicitor advocates who can act in place of barristers also offers a unique one-stop shop and allows us to provide a streamlined, effective option for clients. Snap Shot of Expertise Advising energy companies in connection with threatened protests against the development of an offshore wind farm and on shore power stations Advising major multinational oil companies dealing with NGO protests over many years in relation to protests both offshore and onshore and obtaining one of the first pre-emptive orders in Scotland in relation to environmental protests Acting on the first case in England & Wales in which an injunction was obtained against persons unknown which is now relied on as the leading authority in this area Advising an airport operator in connection with the protection of airports targeted by environmental and political protesters Advising and acting for major retailers, large property companies, financial institutions and universities on protest cases Working with clients to devise crisis management strategies and emergency response plans. 4

6 For further details and any assistance in relation to managing protest action please contact: Bob Ruddiman Partner and Sector Head Energy & Natural Resources T: +44 (0) E: Paul Rice Partner and Head of Client Relationships Energy & Natural Resources T: +44 (0) E: Stuart Wortley Partner Property Dispute Resolution T: +44 (0) M: +44 (0) E: Jim Cormack Partner Litigation & Compliance, Litigation & Regulatory T: +44 (0) M: +44 (0) E: Melissa Thompson Legal Director Property Dispute Resolution T: +44 (0) M: +44 (0) E: Laura Gillespie Legal Director Litigation & Compliance, Litigation & Regulatory T: +44 (0) M: +44 (0) E: 5 This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

7 For more information please visit: pinsentmasons.com/shale Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) authorised and regulated by the Solicitors Regulation Authority and the appropriate regulatory body in the other jurisdictions in which it operates. The word partner, used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm of equivalent standing. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP s registered office: 30 Crown Place, London EC2A 4ES, United Kingdom. We use Pinsent Masons to refer to Pinsent Masons LLP, its subsidiaries and any affiliates which it or its partners operate as separate businesses for regulatory or other reasons. Reference to Pinsent Masons is to Pinsent Masons LLP and/or one or more of those subsidiaries or affiliates as the context requires. Pinsent Masons LLP For a full list of our locations around the globe please visit our websites: and