In recent years there has been a growing trend for injunctions against unnamed defendants or “persons unknown”. This is a young jurisdiction which has developed rapidly, and in this article we consider where the case law currently stands. One of the courts’ key concerns has been to ensure that the persons unknown who are the object of an injunction and the scope of the restrained activities are clearly defined. The courts have also clarified that different considerations apply depending on whether the injunction sought is interim or final.

From Harry Potter to animal rights protestors

The case law in this area can be traced back to the decision in Bloomsbury Publishing Group v News Group Newspapers [2003] EWHC 1205 (Ch), where unpublished copies of a Harry Potter novel were taken without authority and offered to the press by an unknown person or persons. It was held that there was no requirement that a defendant had to be named, but merely a direction that they should be named (if possible). The crucial point was said to be that “the description used must be sufficiently certain as to identify both those who are included and those who are not”.

Since the decision in Bloomsbury, injunctive relief (both interim and final) has been granted against persons unknown in numerous contexts, including against protestors, trespassers and those behaving anti-socially. The jurisdiction has even been extended to a worldwide freezing injunction against persons unknown who participated in an email fraud (see CMOC Sales & Marketing Limited v Persons Unknown [2017] EWHC 3599 (Comm)) and a proprietary injunction where bitcoins were held by persons unknown who had carried out a cyber-attack (AA v Persons Unknown [2019] EWHC 3556 (Comm)).

Legal principles

The recent decision of the Court of Appeal in Canada Goose UK Retail v Persons Unknown [2020] EWCA Civ 303 helpfully draws together the principles from a string of appellate decisions in this field, which include:

• Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6: The Supreme Court articulated two categories of unnamed defendants: (1) anonymous defendants who are identifiable but whose names are unknown and (2) defendants who are anonymous but cannot be identified. Proceedings against category 2 defendants offend the fundamental principle that a person cannot be made subject to the jurisdiction of the court without having notice of proceedings.
• Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515: In a case involving protestors at fracking sites, the Court of Appeal provided guidance on the approach to granting interim quia timet (purely anticipatory) injunctive relief (see further below).
• Cuadrilla Bowland Ltd and others v Persons Unknown [2020] EWCA Civ 9: The Court of Appeal defined the requirement for clarity in an injunction against persons unknown. It must be clear who and what is caught within the scope of an injunction. While a reference to intention is permissible within the definition of a prohibited act or a person, contempt of court for breach will not be established if there is any reasonable doubt about the terms of the injunction.

Canada Goose v Persons Unknown

Canada Goose, the claimant company (which sells coats containing animal fur and down) brought proceedings against protestors outside their Regent Street store. Teare J granted an interim injunction which permitted service by hand and by email to two organisations. Canada Goose subsequently applied for summary judgment on their application for a final injunction, which was refused by Nicklin J. The Court of Appeal upheld that decision and made the following key findings:

• There was no justification for an order dispensing with service of the claim form and particulars of claim, or for alternative service on persons unknown. Service is a crucial factor in ensuring justice is done.
• The following procedural guidelines apply in interim relief applications against persons unknown in protester cases: (1) persons unknown in the claim form must be people who have not been identified but are capable of being identified and served with the proceedings (if necessary, by alternative service); if they are known and identified, they must be joined as individual defendants (2) persons unknown must be defined in the originating process by reference to their conduct which is alleged to be unlawful (3) interim quia timet relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed (4) as in the case of the originating process, known defendants must be individually named and persons unknown must be capable of being identified and served with the order (if necessary, by alternative service, the method of which is set out in the order) (5) the prohibited acts must correspond to the threatened tort (6) the terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do, ideally without reference to intention; and (7) the interim injunction should have clear geographical and temporal limits.
• The grant of a final injunction against persons unknown is confined to anonymous defendants who are identifiable (for example, from CCTV) as having actually committed the relevant unlawful acts prior to the final order and having been served. The purpose of an interim injunction is to grant temporary relief pending trial, during which time the wrongdoers can be identified. That was not the case here: Canada Goose was seeking to use civil law remedies to permanently prevent what they saw as public disorder.

In April, the High Court applied the Canada Goose guidelines in Birmingham City Council v Afsar [2020] EWHC 864 (QB). In that case, Warby J had granted an interim injunction against persons unknown seeking to express opinions about the teaching at a primary school. Applying the guidelines, he later held that there were no persons unknown which could be made subject to a final injunction because a final injunction cannot be granted against a transient mobile class of people. The court reiterated that the ability to sue persons unknown is a departure from the norms of civil litigation and needs to be carefully supervised. In this case, a defect in the description of the persons unknown was remedied in the interim injunction but not the claim form. Further, the claimants had had the opportunity to identify the unnamed defendants but did not do so.

Analysis

As the jurisdiction has expanded, the courts have increasingly required greater specificity when it comes to drafting injunctions against persons unknown. They have also impressed the importance of service upon claimants (both of injunctions and underlying proceedings). During the current COVID-19 global restrictions, service is difficult but it remains a crucial obligation to ensure justice is done. Whereas interim relief may be more readily granted due to its temporary nature (subject to the requirement for clarity and service), it is now clear that final injunctions will only be granted against persons unknown in a narrow set of circumstances.