With rising drone use continuing to generate legal quandaries, the case of Anglo International Upholland Ltd -v- Wainwright & Persons Unknown provides useful guidance on trespass and injunctions.
The facts
The case centred around the St Joseph's College seminary building in Up Holland, Lancashire. The building was a residential centre for the training of Roman Catholic priests from 1883 to 1992, when the last students left. The seminary was then decommissioned, and the building closed altogether in 1996, following which it fell into a state of serious disrepair.
Subsequently, shocking revelations about the history of abuse at St Joseph's, combined with the building's dilapidated state, have led to significant public interest in the site.
Individuals have repeatedly attempted to gain access to the building, flying drones over it to take photos and videos which were then publicised on social media and used to identify access points. The landowner took various steps to prevent trespass, but given the scale of the perimeter, was unable to prevent 100% of intrusions.
They therefore brought a claim in the High Court for trespass, requesting an interim injunction against a specified individual and persons unknown to prevent it.
The decision
His Honour Judge Bird granted the injunction, making an order that the named defendant, Mr Wainwright, and persons unknown, must not access the site, fly drones over it, or make any recording of the site or the perimeter fence from inside the site.
HHJ Bird also ordered that service of the injunction order could be effected on the persons unknown by affixing 10 copies of the order to the perimeter fence. These hard copies also included QR code links to the application bundle and draft judgment, and emails attaching these documents were sent to various relevant email addresses.
Trespass by drone flight?
The relevant provision is section 76 of the Civil Aviation Act 1982 ("s76"), which states that there is no trespass “by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable…” (emphasis added).
HHJ Bird accepted that a drone is an aircraft for the purposes of s76 and decided that, if the drone was being flown above the site at a height which allowed footage to be taken (in a manner that could facilitate trespass), this would not be a 'reasonable' height. This means the exemption in s76 does not apply and the drone flight would be a trespass.
He further held that, if the s76 exemption did apply, meaning that the flight itself was not a trespass, injunctive relief preventing further flights was still appropriate, as footage taken on the flights would be used to facilitate trespass by humans.
Service of injunction orders on persons unknown
Given the severe criminal penalties which can flow from breaching an injunction order, courts are anxious to ensure that all those affected by an order are made properly aware of its terms.
It is therefore important for claimants to be able to demonstrate, to the satisfaction of the court, that they will be able to effect proper service of the application and then the order on the defendants. Where the defendants are not clearly defined, or are 'persons unknown', this can be challenging, but the courts tend to take a pragmatic approach.
As the claim was brought against persons unknown, the claimant had to make an application for alternative service under CPR r.6.15/6.27. This was supported by witness evidence explaining how the service method would bring the application and order to the attention of the relevant people.
The first service method required Mr Wainwright to post a link to the application on his social media (which was shown to be regularly accessed by others who trespassed on the site).
The second method was for the claimant to place hard copy notices around the perimeter fence of the site, which included QR codes to an online file site containing the order and the application documents. The Claimant also publicised the injunction on its website and sent the documents to relevant email addresses and social media groups.
HHJ Bird was comfortable that these methods were reasonable and stood a strong chance of bringing the injunction to the attention of the relevant people, but what is appropriate and acceptable in each case will be highly fact dependent. Claimants should therefore think flexibly and creatively when formulating their application for alternative service and be ready to demonstrate coherently in witness evidence that their chosen methods are likely to be effective.
What next?
This case was an undefended interim injunction (meaning that the defendants did not present any arguments and so the claimants were not subjected to as rigorous legal scrutiny as they might otherwise have been), and a more comprehensive breakdown of the relevant principles and guidance has now been laid down by the Supreme Court in the case of Wolverhampton City Council and others v London Gypsies and Travellers and others [2023]. However, landowners and litigators should still be aware of this case, as it provides a concise and useful practical demonstration of the court's willingness to grant injunctions against non-parties for the purposes of protecting private property rights, including in respect of the use of drones and other recording equipment.