Court sets out guidelines for injunctions against ‘persons unknown’

The Court ruled that Canada Goose’s attempts to reinstate an interim injunction against protestors outside its store in Regent Street, London, failed on several grounds.

In its judgment it set out seven procedural guidelines which it said were applicable to proceedings for interim relief against ‘persons unknown’ in protester cases.

The company brought proceedings in late November 2017 against ‘persons unknown’, seeking to block them from continuing their protests against the sale of animal fur and down. High Court judge Mr Justice Teare granted an interim injunction which restrained the unknown persons from demonstrating.

The injunction was served by being sent to two generic email addresses, including one for the People for the Ethical Treatment of Animals (PETA) Foundation which was later joined to the proceedings.

When the interim injunction was challenged Mr Justice Nicklin said it could not continue as no defendant had been validly served, and also because PETA had a real prospect of defending the claim.

The Court agreed with Mr Justice Nicklin. It emphasised “the importance of service in order to ensure justice is done”, and noted that sending the claim to the email address used could not “reasonably be expected to have brought the proceedings to the attention of the unknown persons respondents”.

The Court said Canada Goose had served copies of the interim injunction on 121 individuals who could be identified, but none had been joined to the action. The company could also have applied for an order for alternative service to bring the proceedings to the attention of more people – for example by exhibiting the order and the claim form at the shop in question – but it had not.

The ruling went on to dismiss Canada Goose’s other grounds for appeal, and set out a series of procedural guidelines for similar cases. It said any defendants who had been identified must be joined to proceedings, and ‘persons unknown’ included both anonymous defendants who are identifiable at the time the proceedings commence but whose names are unknown and also people who in the future will join the protest and fall within the description of the ‘persons unknown’.

The Court said interim injunctive relief should only be granted if there was a “sufficiently real and imminent risk” of a tort being committed, and acts prohibited by the injunction had to correspond to the threatened tort.

The terms of the injunction must also be sufficiently clear and precise to enable the people potentially affected to know what they must not do, and the injunction has to have clear geographical and temporal limits.

Litigation expert Julian Diaz-Rainey of Pinsent Masons, the law firm behind Out-Law, said: “Injunctions against ‘persons unknown’ throw up many conflicting legal issues, such as private law rights and civil liberties, and as such any guidance on making such applications should be welcomed.

“It is also interesting that the judgment referred to alternative service of the claim form ‘such as can reasonably be expected to bring the proceedings to their attention’. This reflects some recent decisions where the courts, when considering service, have considered the efforts the claimant has made to effect service through means such as social media and other digital platforms,” Diaz-Rainey said.

Examples of such cases include an example last year, when the High Court allowed an individual to begin court proceedings against her former partner by serving the claim form via the WhatsApp messaging service.