Injunctions against Persons Unknown - A wild goose chase?

Businesses and venues which are targeted by protestors or anti-social behaviour have options available to them in order to protect themselves.  This can be the case even if it is not possible to identify the perpetrators. Temporary or interim injunctions against “persons unknown” have been granted in a variety of circumstances, for example in relation to fracking protests.  However, injunctions, especially against “persons unknown” will not be made lightly and will be subject to close scrutiny by the Court.

A recent example of this is the latest in a series of hearings involving the clothing manufacturer and retailer Canada Goose. Canada Goose UK Retail Limited (“CGUK”) operates a shop in London which has been the focus of numerous protests from animal rights campaigners, particularly in November 2017.  CGUK obtained an interim injunction against “persons unknown” to limit the scope and extent of those protests, including restraining the “persons unknown” from:

• threatening Protected Persons (defined as CGUK employees, security personnel, customers and any other person visiting the store);
• behaving in a threatening and/or abusive and/or intimidating manner towards Protected Persons;
• photographing or filming Protected Persons;
• entering the store;
• blocking or obstructing the entrance to the store;
• banging on the windows of the store;
• painting, spraying and/or affixing things to the outside of the store;
• projecting images on the outside of the store;
• demonstrating at the store or within defined exclusion zones;
• using a loudhailer anywhere within the vicinity of the store or within defined exclusion zones.

A year later, in November 2018, CGUK issued an application for the continuation of the interim injunction, so that the above restraints continued, and for summary judgment on certain aspects of the claim. The application was dismissed and the interim injunction was discharged. It was held that the proposed final injunction was defective in that the description of “persons unknown” was too broad and it was capable of capturing a wider class of individuals than was clearly intended.

CGUK appealed to the Court of Appeal.Here we consider the useful guidance this case provides in relation to interim junctions against unknown persons, building on the previous cases of Ineos Upstream ltd v Persons Unknown [2019] and Cameron v Liverpool Insurance [2010].

The Court has now set out seven clear and detailed procedural guidelines that are applicable for interim injunction relief against persons unknown, elaborating on the six previously established requirements in Ineos and clarifying the position on unidentified individuals. A summary of the revised guidance is as follows:

• The “persons unknown” must be individuals who have not been identified at the time of the commencement of the proceedings but are capable of being identified and served with the proceedings.
• The persons unknown must be defined in the originating process by reference to their conduct which is alleged to be unlawful.
• Interim injunctive relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet [i.e. an injunction in anticipation] relief.
• The defendant subject to the interim injunction must be individually named if identified or, if persons unknown, must be capable of being identified and served with the order.
• The prohibited acts must correspond to the threatened tort.
• The terms of the injunction must be sufficiently clear and precise and in a language which the defendant is capable of understanding.
• The interim injunction should have clear geographical and temporal limits.

In respect of point 1 of the guidance, whilst in principle this may include both a) anonymous but identifiable defendants (i.e. from CCTV or body cameras) and b) “newcomers” to the prohibited action (i.e. people who join a protest at a future date) the Court has sought to limit the second element when considering final injunctions. The Court held in the Canada Goose case that it would be inappropriate and against the principle of justice to grant a final injunction against a “newcomer” who, at the date of the final order, had not committed the prohibited action and who had not had notice of such proceedings.

The Court of Appeal was highly critical of CGUK's failure to even attempt service of the claim form on individuals who could be identified.  300 people had been served with the interim injunction, but none of them had been served with the claim form and added as parties to the proceedings (even though CGUK had been permitted to effect service on certain parties by email).  The Court of Appeal commented that:“It is a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard.”  This is a timely reminder of the dangers in even the most basic obligations in litigation, service of the claim form properly and promptly.

Further, it emphasises the need to ensure the terms of the injunction sought are sufficiently clear and precise (including providing anyone who may be affected by the order with sufficient detail as to the geographical limits of the injunction - preferably by way of a plan rather that Land Registry title numbers), and not drafted so widely that it is capable of capturing individuals who pose no threat of committing an unlawful act.