In a highly critical judgment that resulted in a finding that the committal application was completely without merit, and an order that the Claimants may not file a further committal against “persons unknown” Scott Moncrieff acted for the solicitor.
Ms McGivern a well-respected and well known criminal advocate had acted for a person accused of aggravated trespass prior to a grant of an injunction at the site. Ms McGivern successfully represented the protestor against who the Crown offered no evidence. As a result, she was aware of protesting at the MBR site, and decided to see if any of the other protestors required assistance. Ms McGivern accepted that she did actions of trespass, by stepping on to land whilst reading a notice, and obstructing a vehicle whilst attempting to speak to the staff about the terms of any injunction.
The solicitors for MBR issued after many months of delay an application for contempt without considering pre-action procedure, or seeking to clarify the purposes of the visit after Ms McGivern had sought to assist the protestors pro bono in respect to the civil matter.
In the widely reported judgment, the Court determined that “Ms Bolton's final submission was that the Claimants were "entitled" to bring the contempt application against Ms McGivern; "entitled" to spend two days of Court time and resources pursuing an application that, on an objective assessment of the evidence, was only ever likely to end with the imposition of no penalty; and "entitled" to put a solicitor through the ordeal of a potentially career-ending contempt application and all the disruption that it has caused to Ms McGivern's work and the impact it has had on this litigation. There is no such "entitlement". The contempt application against Ms McGivern will be dismissed and will be certified as being totally without merit.”
The Court went on to consider restraining the Claimants from further applications and said “In ordinary cases, the Court might usually expect that a litigant who had obtained such an injunction would consider carefully whether it was proportionate and/or sensible use of the Court's and the parties' resources for contempt proceedings to be brought against someone who had inadvertently contravened the terms of the injunction. The Claimants have demonstrated that, even with the benefit of professional advice and representation, the Court cannot rely upon them to perform that task appropriately.”