Amy Proferes acted for the successful respondents in Dyer v Webb [2023] EWHC 1917 (KB). Perhaps unusually for a neighbour dispute, the case (as noted by Dexter Dias KC in his judgment) "raises important questions about the nature, extent and limitations of certain of our fundamental freedoms under the law."  The judgment confirms that objecting to planning applications, and discussing those applications with others, are rights protected under the Human Rights Act 1998.

The Applicants and the Respondents live in Brook, a small village in Surrey. It is located in a designated Area of Natural Beauty and is therefore subject to strict planning controls. Since moving there in 1997 the Applicants had made more than 50 planning applications, some of which the Respondents had objected to.

The Applicants sought an injunction to restrain the Respondents from (amongst other things) acting in concert, coercing or soliciting others to make ‘unmeritorious’ objections to the Applicants’ planning applications or other objections to the local authority such as high hedge complaints. The Applicants did not maintain that the objections were incorrect but rather that, when taken together, they formed a malicious campaign calculated to distress the Applicants. They alleged that this was a course of conduct prohibited under the Protection from Harassment Act 1997.

Some may be unaware that a different test applies in applications for injunctions which will restrict freedom of expression. Rather than ‘Is there a serious issue to be tried?’ per the American Cyanamid guidelines, the burden is on the applicant to show that they are more likely than not to succeed at trial (following s12(3) of the Human Rights Act 1998). Under the 1997 Act, a course of conduct which the defendant proves was reasonable in the circumstances will not be prohibited. How then does the burden fall at the interim injunction stage, when seeking to restrain free speech on the grounds that it is harassment?

The court summarised it as follows:

1. At trial, it is for the respondents to prove on the balance of probabilities that their conduct was reasonable (if it would otherwise be harassment);
2. For interim relief, the applicants must satisfy the court that it is likely that they will establish at trial that ‘publication will not be allowed’ (planning objections being ‘publications’ for the purposes of s12 HRA 1998);
3. Therefore at the interim stage the applicants must satisfy the court that it is likely the respondents will not prove reasonableness at trial.

The Applicants failed to meet this burden, as well as that set out in American Cyanamid. On both the test to restrain the Respondents’ rights of expression, assembly, and association, and to restrain other alleged conduct, the Applicants failed on each of the three limbs of the relevant test. They also failed to meet the test for a pre-action injunction at CPR 52.2(2)(b). In conclusion the court stated:

"To fetter the autonomy of individuals in their exercise of free speech rights will require good cause. I judge that this court must be slow indeed to restrain protected and precious Convention rights and freedoms by injuncting genuine and meritorious objections to planning applications, even if they might upset the person applying to develop their property."

The court ordered the Applicants to pay the Respondents’ costs on the indemnity basis, and recorded that the application was considered to be Totally Without Merit. It can only be hoped that this resounding judgment will restore peace to what the judge described as "a truly beautiful part of the country".  

“The judgment emphasises the importance of the fundamental rights of freedom of expression, assembly and association in a democratic society, and the caution the court should exercise when asked to restrict such freedoms,” commented the lawyers for the Respondents, David Haines and Rachel Carfrae of Charles Russell Speechlys LLP and Amy Proferes of Serle Court as Counsel. “Our clients are delighted that their rights have for the moment been protected by the decision of Judge Dias KC to deny the interim injunction application on all of the grounds sought. After a difficult year dealing with an unfamiliar court process, initiated by neighbours who were described by the court as sensitive and litigious, our clients hope that this sorry state of affairs will soon be concluded.” 

The Legal Diary published a summary of the decision 'Objections not Harassment in Rural Bliss' on 21 July 2023. Read the full summary here.

To read the approved judgment of 10 July 2023, click here.