Judge Pelling in Cuadrilla case acted beyond his powers.

Cuadrilla is restricting protest, putting a block on anything that might be effective.   Arrests have been dropping off in number, apart from injunction-induced events.  So what’s the problem?

An online organisation Regain The Power had been threatening direct action, and that online threat was the reason Judge Pelling extended the temporary injunction by two years.

There is no threat of direct action.  The drillers don’t have social licence amongst the communities that are threatened by fracking.  Evidence of deaths and sickness and economic collapse around fracking sites around the world was not considered as material by the Judge.  He cited a former case in London from 2012 (Samede) in which a senior judge had decided that in injunction decisions, the seriousness of the threat being demonstrated against cannot be considered, or taken into account in any injunction.

TAP – That decision would be beyond the power of the court to make if indeed they claimed to make it  (see case details in link below).  Any court is only empowered to decide the case before them.   Judges are not empowered to make general laws, whether they be Court Of Appeal, Supreme Court or any other.

I asked Ian to send me the details of the precedent case quoted by Pelling.  Unfortunately we are in Manila right now so that’s not so easy (Ah!  I just found the email in SPAM!). 

In my opinion,  after reading the summary, the wording of the former decision (Samede) is wrongly applied by Pelling.

In the case before the judge in Samede, for example, was there evidence that if the development went ahead, people would lose their lives?  Was there evidence in Samede that nearly 100% of the people in the area were against the development?  If there were material circumstances (such as the above) in the Cuadrilla case which were not present in the Samede case, then the precedent should not have been held as persuasive by Judge Pelling in the Cuadrilla case. 

Under the system of precedent Judge Pelling was acting beyond his powers in interpreting Samede as a general law, and he should instead have made a detailed examination of the circumstances applying in each of the two cases, Samede and Cuadrilla, drawing the differences, and explaining how his decision was applied taking all the circumstances into account.  He did not do this. 

He treated Samede as an overriding decision in all possible circumstances, which is a wrong application of precedent to the case he was meant to be judging.  If the Court Of Appeal in Samede attempted to make a decision applying in all possible cases, this was acting Ultra Vires – beyond their powers.  Courts can only decide the case before them, and must explain how they are working within the precedent cases.  Only Parliament can legislate new law.

Ian’s email –

Here’s a link to a summary of the ‘City of London vs Samede’ ruling from 2012. Paragraphs 7 & 8 highlight the Court of Appeal legal precedent which Judges Morgan (INEOS) & Pelling (Cuadrilla) quote ad nauseum … Justice Male (UKOG) is due to give a ruling on the UKOG Injunction application sometime in the next couple of weeks. There is faint hope that he might rule against the application on the basis that the protest activity against UKOG is a fraction of that at Preston New Road … but I won’t be holding my breath!

https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/cityoflondon-v-samede-summary.pdf

The primary objection in challenging the Cuadrilla application was, of course, to get the application dismissed … failing that, the objective was to spell out for all to see, that Parliamentary legislation is subordinate to the practice of Admiralty Law in the Commercial Court.

The INEOS Injunction is being appealed but the appeal date is March 2019 … there is some optimism that the Samede precedent will be either overturned or at least amended in such a way that Judges in the lower courts are forced into taking responsibility for their judgments as opposed to hiding behind the CofA Samede ruling.

Meanwhile, we’ll keep plugging away and being even more creative in our opposition to this insidious industry. 🙂

Have a wonderful time in the Far East and we’ll catch up when your back in the UK.

TAP – Are there any lawyers out there who can see holes in the Samede ‘judgement’, as I describe?  BTW I got a 1st in Common Law at Oxford, and worked very briefly in courts before realising that gowns and wigs were not for me.   Pelling made no attempt to position the case before him and simply read out the earlier judgement, without making absolutely sure the two cases were similar, which they clearly are not.  He also appears to have restricted his decision to not taking into account circumstances specified that he should do by the Samede judge.

From Samede summary –

The extent and duration of the obstruction of the
highway, and the public nuisance inherent in that
obstruction, would itself warrant making an order
for possession and granting injunctive and declaratory relief. So too would the effect of the camp
on the Article 9 rights of worshippers in the cathedral. So would the effect on visits to the
cathedral. So would the other private nuisance caused to the Church. So would the planning harm
to which I have referred. Adding all of these things together, one has, I think, an unusually
persuasive case on the positive side of the balance.
How has Pelling found these circumstances to be identical to the Cuadrilla case and PNR?  He has only managed this by refusing to consider the circumstances at all, which as a judge, he should never do.  It seems the Samede judge carefully set the limits of the case to the circumstances before him.   It was not the Court Of Appeal wrongly applying the law.  It was Pelling.
Samede judgement adds –
The proposed interference with the defendants’ rights under Articles 10 and 11 is, I
accept, the least intrusive way in which to meet the pressing social need, and strikes a fair balance
between the needs of the community and the individuals concerned so as not to impose an
excessive burden on them. Withholding relief at this stage would plainly be wrong. The freedoms
and rights of others, the interests of public health and public safety and the prevention of disorder
and crime, and the need to protect the environment of this part of the City of London all demand
the remedy which the court’s orders will bring……..

It’s time for Judges Morgan and Pelling to reach back to their training manuals, sharpen their pencils and do their jobs properly.  Either that or make way for judges that understand and comply with the principles of the Common Law.  Should they wish to maintain that they are not applying the Common Law but European Law, they are on no firmer a basis for their recent decisions.  EU law is teleological, does not restrict judges to following precedent, and allows them to take into account every circumstance before them.  They can say that no lawmaker would have intended the result which strict interpretation of the law would bring about.  The anti-frackers’ evidence of death, sickness, environmental and economic destruction would have to be listened to.

These judges are a disgrace to their profession, and should be retired and replaced ASAP.  If you have any legal knowledge and can add to this, email me at this blog or info@ianrcrane.com.  We appreciate that criticising judge’s recent decisions won’t enhance anyone’s career.  But maybe there’s a lawyer out there with cahones, and who actually cares about what will happen at PNR,  even if there’s only one.  The lawyers who were meant to represent the anti-frackers in the case did the dirty and failed to turn up at the hearing, without notifying their clients in advance.  That too is shocking.  They too should be run out of town.  Their names should be published.

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