IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION 1998 M No 1180 B E T W E E N: MONSANTO PLC Plaintiff and 1. ROWAN TILLY 2. JO HAMILTON 3. KATHRYN TULIP 4. MELANIE JARMAN 5. ZOE ELFORD 6. ANDREW WOOD (sued on their own behalf and on behalf of all other members or representatives of "genetiX snowball", an unincorporated organisation) Defendants AND BETWEEN : 1998 M No 851 MONSANTO PLC Plaintiff and 1. ROWAN TILLY 2. JO HAMILTON 3. KATHRYN TULIP 4. MELANIE JARMAN 5. ZOE ELFORD Defendants PLAINTIFF'S SKELETON ARGUMENT FOR HEARING ON 19 APRIL 1999 INDEX 1. OUTLINE OF CASE Paragraphs l - 12 2. REPRESENTATIVE ACTION 3. REASONS FOR INJUNCTION Paragraphs l 8 - 22 4. REASONS FOR ORDER AS TO LIST Paragraphs 23 - 25 5. SUBMISSION Paragraph 26 ITALICISED REFERENCES ARE TO TAB AND PAGE NUMBERS IN THE COURT BUNDLE 1. OUTLINE OF CASE 1. The Plaintiff (P). P is a UK subsidiary of a very substantial American corporation (File 1 / Tab 4/ page 26/ para 24). P was established in February 1997 (1/4/26/24). It is itself a substantial plc having net current assets in excess of £67M and net assets in excess of £263M as at 30.9.97 (1/4/26/24 and 1/4/48). P's business includes plant biotechnology and, in particular, the development for commercial purposes of genetically modified plants (GM Plants). In 1997-8 P embarked on research and development trials in relation to GM Plants at some 70 sites within England, Wales and Scotland (1/4/21-22/2 and 1/4/31-32). In the current year, P has already commenced research and trials at some 20 sites (2/ 21/352/4 and 2/21/356). P's research and development trials of GM Plants are lawful and carried out with the appropriate government consents (114/22/4, 2/19/195/7, 2/26/436/4-6 and 2/26/439-440). P's research and development programme is being carried out lawfully for commercial purposes and in a climate of intense commercial competition (1/4/26-27/25-26). 2. Until recently all P's field trials and research were conducted on land ownedby third parties under contracts with P. P owns all the crops the subject of such trials and research (2/19/196/11-12 and 2/19/317-9) . On 16.7.98 P purchased a large and very important site known as Plant Breeders International Cambridge (PBIC) at Marris Lane, Trumpington, Cambridgeshire (2/19/195/7 and 2/19/208). 3. The Defendants (individually D1, D2, D3, D4, D5, D6 ). P learnt of the identity of D 1 -D5 from the police following their arrest at the Sites, a farm at Shirburn, Oxfordshire (the Farm) on Saturday **4.7.98 ( para 14). It is common ground that D1- D5 have each been personally involved in uprooting P's GM Plants. Admissions are pleaded in the Defence served in each action (for admission in action 851 see 1/8/127/6 and for admission in action, see 1/15/182/6). Each of D1-D5 has sworn an affidavit admitting such action: D1 admits uprooting 1 GM Plant (3/1/1/2), D2 admits uprooting 25 GM Plants (3/2/15/3), D3 admits uprooting 64 GM Plants (3/3/30-1/17-19), D4 admits uprooting approximately 50 GM Plants (3/4/48/2), D5 admits uprooting 30 or 40 GM Plants (3/5/56/22). 4. None say that they would not take action against P if it did not have the protection of an injunction. Quite the reverse: D1 makes clear her "intention to continue to remove GMplants" (3/1/9 10/39), D2 states her view that it is important to take action to voice her opinions (3/2/16/9-10), D3 states that her action against P's property was "necessary... in the public interest... [and; reasonable" (3/3/33/26), D4 "invite[s]; that [she] should be held to account for [her] behaviour" (3/4/Sl/10), and D5 states that she continued uprooting P's GM Plants ("pull and bag the biohazard") after the police had told her to stop (3/5/56/24). Further, action 1180 was prompted by a number of factors including D3's letter dated 15.9.98, ie some 3 months after the first injunction, to P at PBIC threatening unlawful action at that site (1/10/142). 5. Dl -D6 were actively involved in creating, and initiating direct action on behalf of, "genetiX snowball" (the Organisation) (3/6/70-1). They have been and are actively involved managing and co-ordinating the Organisation and its campaign against GM Plants. Their involvement is such that they are correctly identified as its representatives. It is common ground that the Organisation is an unincorporated association (3/6/98). It is also common ground that it does not have a conventional structure 'officers'. It describes itself as "a campaign of mass nonviolent 'civil responsibility'" (3/6/70). To make any impact at all the Organisation must be directed and its active supporters and campaigners must be organised. This is done by a co-ordinating group (2/19/223). 6. As an organisation it supports a campaign for a 5 year freeze on genetic engineering in food and farming (3/6/124) and "most importantly" seeks to raise the issue in the public eye (3/1/6/25), i.e. grab headlines by direct action (1/10/139) and manipulate journalists and the media (2/19/301). The Organisation was formed to achieve its objectives by taking direct action against GM Plants at sites operated by P and other "biotechnology corporations", and encouraging "many people [to] pull up a few plants each" (3/1/6-7/23-6 for Dl's evidence and 1/4/42 for the Organisation's campaign leaflet). 7. P's complaint is about the means by which the Organisation pursues its objectives, not the objectives per se*. (* Needless to say, that does not imply agreement with the objectives). 8. For evidence illustrating the functions, responsibilities and acts of D1-D6 on behalf of or as representatives of the Organisation, P refers to the following: For D1: (i) the address given by D1 to the police (1/4/27/28-29), (ii) D 1's letter to P on behalf of the Organisation (1/4/39-40), (iii) the introduction to the Organisation's Handbook For Action (the Handbook) by D1 as co-author / editor (2/19/215), (iv) D 1's letters to GM Plant companies and the Police reproduced in the Handbook (2/19/269-270 and 272), (v) Dl's evidence about her involvement in the Organisation (3/1/1/4 and 3/1/7-12 ), in particular the formation of a steering and co-ordinating group (3/1/7/27), and (vi) the references to D1 in the Organisation's Newsletter of February 1999-(a) encouraging continuing action in "the fields" and, as a new action, "supermarket decontamination" (2/21/362) and (b) co-ordinating local groups in Brighton, London and the South East (2/21/363). For D2: (i) D2 admits that she is "part of the group that is organising it [the genetiX snowball campaign] " (3/2/16/8). For D3: (i) D3's letters on behalf of the Organisation to approx 115 farmers, The Environment Agency and the HSE (3/3/29/14, 3/3/36-8 and 3/3/46), (ii) D3's statement issued to the press after her arrest and on behalf of the Organisation encouraging "other ordinary people to join with us"(3/6/72), (iii) D3's letter, on behalf of the Organisation, to P dated 15.9.98 threatening further action (1/10/142), (iv) the introduction to the Handbook by D3 as co-author / editor (2/19/215) and D3's evidence that she is a co-author (3/3/29/15, 3/3/31/21), and (v) D3's admissions (a) that the Organisation was conceived by her and a small group of others (3/3/28/12) and (b) of active involvement in the Organisation (3/3/24/1). For D4: (i) D4's involvement in the original action on 4.7.98 (3/4/49/4) against P on behalf of the Organisation and launch of its campaign (3/6/69), (ii) D4's involvement in further action at another site on 18.7.98 (3/6/79-80), (iii) D4's role, in December 1998, as the person launching the Handbook on behalf of the Organisation (3/6/103), (iv) D4's statement to the press and media that "I hope this handbook will inspire others to take action" (3/6/103), and D4's role in the Organisation's film, released on 27.1.99, to inspire action by others (3/6/109). For D5: (i) D5's evidence as to her involvement in forming the Organisation (3/5/55/16) and selecting P's site for the first direct action (3/5/55/18), and (ii) the address given by D5 to the police (1/4/27/28-29) and on her affidavit (3/5/52). For D6: (i) D6 identifies his "principle role" (sic) with the Organisation as press and media liaison (3/6/57/2), (ii) this has been his role for the Organisation since before 4.7.98 (3/6/57/2), (iii) D6 represented the Organisation as "the Media Liaison" for the action against P on 4.7.98 (3/6/58/4), (iv) D6 was responsible for the Organisation's promotion in the media of action planned for the weekend 19-20.9.98 which was to involve training on 19.9.98 and targeting P's PBIC site on 20.9.98 (1/10/133-4/8-12, 3/6/96-99), (v) D6 issued numerous press releases for the Organisation, which releases give contact details (3/6/69-140), (vi) these press releases include promoting (a) the Handbook as a manual for taking action against sites at which GM Plants are grown (3/6/104), and (b) forthcoming action by the Organisation scheduled for 17.4.99 (3/6/111), (vii) D6 acts as spokesman for the Organisation (3/6/107), (viii)D6 edits the Organisation's Newsletter (2/21/358), and (ix) D6's name and contact phone number is given on a recorded message relating to proposed action on 17.4.99 at a site covered by the Injunction ordered by consent by Mr Justice Eady on 25.3.99 (6th affidavit of A D Phillips to be sworn before 19.4.99, para 6). 9. The Organisation and its objectives. The Organisation's objectives are dealt with at paragraphs 5 and above. 10. The Organisation has substance and a well developed infrastructure: (i) it is directed and managed by a co-ordinating group (2/19/223 and 3/1/7/27), (ii) it has and publicises a postal address, telephone line, facsimile number and e-mail address (1/4/37, 1/4/39 and 1/4/42), (iii) it has received [and presumably dealt with] over a thousand enquiries to its office (3/6/111), (iv) it has a "comprehensive" web site and a web site administrator (3/6/105 and 3/6/111), (v) it has a bank account and seeks donations (1/4/42), (vi) it has published a 100 page handbook, priced at £33.50, (2/19/213-314) and distributed 600 copies (2/21/358), (vii) it publishes a newsletter (2/21/358-363), (viii) it has published other works including "The Ecologist edition on Monsanto", Price £3.50, (2/21/363), (ix) it has published a video film, priced at £33.50 (2/21/363), which has been "well received" (2/21/358), (x) it has a Press /Media Liaison [D6] (2/21/359 and 3/6/57/2), (xi) it has held over 40 public meetings (2/21/358), (xii) it trains people to take direct action as part of its campaign (2/21/359 and 3/6/96), (xiii) it has undertaken 4 direct actions so far, with a 5th scheduled for 17.4.99 (3/6/l l l ),the direct action has involved over 70 people (2/21/358), (xiv) it has branches or local groups which meet regularly in Brighton, London, the South East (2/21/363), and branches in Scotland (3/6/102), Bristol (6th affidavit of A D Phillips), and Cambridge (letter of 14.4.99 to be available at Court), (xv) it acts as a co-ordinating office for proposed uprooting action by its campaigners (Leigh Day & Co letter of 7.4.99 exhibited to 6th affidavit of A D Phillips), (xvi) it takes full responsibility for the Handbook (2/19/215), (xvii) the Organisation is itself a member of other organisations: the Genetic Engineering Alliance and the Genetic Engineering Network (2/21/358), (xviii) it was awarded, but rejected, the 1998 Green Ribbon Award for 'Best Political Campaign by an Environmental Organisation' (3/6/107), (xix) it calls for a full trial of this action as a vehicle for adducing 'evidence' by its 'experts' in a public forum under the slogan "Fair hearing for snowball, Full trial for genetics" (1/17/186-7, 3/6/112 and 2/21/358), and (xx) it maintains a mailing list (1/12/160) and, presumably, computer based records. 11. After the initial unlawful action, the Organisation was reported as having some 30 members (1/4/45). Evidently, it does not regard itself as a "membership organisation" (2/21/359). Dl appears to take a different view (3/1/7/29). The semantics are irrelevant where, as here, there is well established functioning structure which encourages, co- ordinates and directs action by campaigners and activists in its name and on its behalf. For the purposes of this action the Organisation's members are those persons who actively support or campaign on its authority or behalf, or in its name. [ For clarity, P will ask for a definition to this effect to be added to the Interpretation section of the Order sought and for an Injunction to be granted against "the Defendant and the members of genetiX snowball"]. 12. The acts and threats of which P complains. In late June 1998 P became aware of the Organisation's intention to disrupt and put an end to P's GM Plant research and development programme and trials (1/4/3 7-38). Such action was threatened to be direct and sustained on a regular and frequent basis as from Saturday 4.7.98 (1/4/37 and 1/4/42-43). .Following the unlawful attack on P's GM Plants on 4.7.98, the injunctive relief obtained against D1-5 personally (Action No.1998 M No. 851) in July 1998 seemed to have the desired effect until 17.9.98 when P received a letter, dated 15.9.98, signed by D3 on behalf of the Organisation. (1/10/142). The letter gave notice that P's sites in Cambridgeshire were on the Organisation's short list of targets for action on Sunday 20.9.98. The intention to hold a training day and "the largest open action to pull up genetically engineered crops" had been publicised by press releases of 31.8.98 and 16.9.98 without venue details (3/6/96-97). D6's press releases confirm that was prevented by the Order of 18.9.98 (3/6/98-9). The threats remain both individually and collectively (paragraph 4 above and 6th affidavit of A D Phillips). P will also refer to D4's statement in a press release of 18.7.98 (1/5/113) and section 5 of the Handbook (2/l 9/234-241). 2. REPRESENTATIVE ACTION 13. In addition to suing D 1-6 in their personal capacity, P sues them as representatives of all members of the Organisation. RSC Ord 15 Rule 12 (1) provides that: "Where numerous persons have the same interest in any proceedings ..... the proceedings may be begun, and, unless the Court otherwise orders, continued, ... against any one or more of them as representing all .. of them. " 14. In relation to the general proposition P relies on The Taff Vale Railway Company v The Amalgamated Society of Railway Servants 1901 AC 426, and, in particular : the passage in the speech of Lord MacNaghten, at p439, ending: " ... it seems to me there would be no difficulty in suing a trade union if it be sued in a representative action by persons who fairly and properly represent it", and the passage in the speech of Lord Lindley at p443 including the statement: " ... The principle is as applicable to new cases as to old, and ought to be applied to the exigencies of modern life as occasion requires. " 15. For the application to activists or "eco-campaigners" see the approach of the Court of Appeal in making an order against the representatives of a group called "Animal Aid" in M. Michaels (Furriers) Ltd vAskew and Others The Times 25. 6. 83 and 127 Sol Jo 597. A transcript of Michaels v askew is included in the authorities bundle. P will refer to the judgment of Dunn LJ following the Taff Vale decision in holding: " ... the rule should not be limited to certain defined categories of case, ... it should be applied flexibly to situations as they developed in order to achieve justice." Tcpt pl3 E-F, " ... The application of the rule is a matter of practical convenience, to enable the plaintiff's rights to be tried fairly and in order to obtain an effective remedy." Tcpt pl4B, and "... Care must be taken that the rule is not abused. But where a number of unidentified persons are causing injury and damage by unlawful acts of one kind or another, and there is an arguable case that they belong to a single organisation or class which encourages action of the type complained of; and their actions can be linked to that organisation, then the rule enables the court to do justice in the particular case." Tcpt pl S AC. 16. In EMI Records Ltd v Kudhail and Others 1985 FSR 36, also a Court of Appeal interlocutory decision, demonstrates the courts willingness to assist where a plaintiff cannot ascertain the identity of individuals behind or operating under a trade name. 17. Relevant factors for the Court's consideration are the existence of (a) a sufficient identity of interest amongst defendants as a class, (b) a commonality of purpose on their part, and (c) difficulty in identifying all those responsible for the unlawful threat or action. P submits that the evidence makes out a clear case for a representative action. REASONS FOR INJUNCTION 18. For a summary of the principles applicable to the granting of injunctive relief in response to threatened invasion of legal right see Halsbury's Laws of England, 4th Edn Vol 24 paras 832 and 835. The Court's jurisdiction under s.37 of the Supreme Court Act 1981 is a discretion to "grant an injunction.... in all cases in which it appears to the court to be just and convenient to do so." l9. This is a case about a subsisting campaign against GM Plants and biotechnology companies and a recent threatened attack on P's property and legitimate business activities with the deliberate aim of disrupting and terminating such activities by means which are unlawful. In addition there has been a threatened trespass at P's PBIC site, at which P has premises and other assets in addition to GM Plants. 20. Damages are not an adequate remedy for the torts the subject of this action. Damages are an inappropriate remedy in lieu of an injunction for threatened future wrongdoing because it is not possible to estimate the extent, duration or effect of such wrongdoing. For an analogy see PPL v Maitra 1998 2 AER 639, Lord Woolf at 647 h-j. 21.Further, damages for disruption of business are difficult to assess. This is a relevant factor when considering the balance of convenience / least injustice at the interlocutory stage (RSC Vol I Ord 29 para 29/1/3 page 504 citing Merchant Adventurers Ltd v Grew & Co 1972 Ch 242 at 256). 22. In any event even if damages were adequate and to be awarded, recovery is unlikely to be a straightforward process. The most effective remedy is an injunction to prohibit actual and threatened wrongdoing. 4. REASONS FOR ORDER AS TO LIST OF RECIPIENTS OF THE HANDBOOK 23. P is concerned to ensure that the terms of any Order made should be communicated to all campaigners and activists acting or likely to take action as part of the Organisation's campaign. P has made clear its intention to protect its property through the courts and will seek to uphold and enforce any order made. To that end it is necessary for P to be able to bring the terms of any injunction granted to the attention of those affected. 24. P does not seek to have disclosed to it the names of the Organisation's campaigners and activists, much less its mailing list. What it seeks is an Order (i) which will enable the objective outlined at paragraph 17 above to be achieved, (ii) with disclosure to P of a name or names only in circumstances where proceedings for breach of an injunction are contemplated. 25. This is entirely consistent with the principles upon which such disclosure may be ordered by the Court. P will refer to: Norwich Pharmacal v C&E 1974 AC 133, British Steel Corpn v Granada Television 1981 AC 1096, Handmade Films (Productions) Ltd v Express Newspapers 1986 FSR 463, CCH Software Care Ltd v Hopkins & Wood 1993 FSR 241, P v T19971 WLR 1309. SUBMISSION 26. P submits that this is an appropriate case for Summary Judgement against the Defendants as individuals and as representatives of the Organisation, and asks the Court to make an Order as sought or such other Order as it considers appropriate to protect P's property and legitimate interests. Simon Barker Counsel for Monsanto PLC 14.4.99. An authorities bundle will be provided at the hearing on 19.4.99.