Canada Goose UK Retail Ltd and another v Persons Unknown and another

Held, refusing the application, (1) that the Civil Procedure Rules provided a comprehensive framework for the commencement of claims and the service of originating process upon defendants, with the object of seeking to ensure that defendants to civil claims were given proper notice of the claim that was being made against them and a reasonable opportunity to put forward any defence to the claim; that the fact that the court, exceptionally, permitted a claim to be brought against “persons unknown” did not lead to the abandonment of that basic principle; that while there might be practical difficulties in achieving the objective where the identity of the defendant was not presently known, it did not lessen the obligation to attempt to do so, and even people who shielded themselves behind anonymity were to be afforded the basic right, so far as possible, to be given notice that a claim was being made against them and an opportunity to defend themselves; that in the present case the court had made no order permitting alternative service of the claim form pursuant to CPR r 6.15, having permitted alternative service in respect of the injunction order only; that that omission could not be corrected under the “slip rule”, which permitted corrections only where an order did not properly reflect the order made by the court, and not in respect of orders which a party considered the court ought to have made but had not; that, in the absence of an order permitting alternative service, the only method by which the persons unknown could be validly served was by personal service in accordance with CPR r 6.5, which had not occurred; that, since there had been no service by any of the methods permitted by rule 6.5, the claim form had not been validly served on any defendant in the proceedings; and that it was not appropriate to make an order dispensing with service of the claim form pursuant to CPR r 6.16 without a proper application notice, on which application, in any event, the claimants would face significant obstacles in persuading the court to grant dispensation (post, paras 24, 58–59, 138–142).

Cameron v Hussain[2019] 1WLR1471, SC(E) applied.

(2) That the grant of quia timet interim injunctions against “persons unknown” was provisional, in that the party seeking the injunction was expected to take all practical steps to identify the alleged wrongdoers so that they could have an opportunity, if they wished, to defend themselves, and was conditional upon the court being satisfied that (i) there was a sufficiently real and imminent risk of a tort being committed to justify quia timet relief, (ii) it was impossible to name the persons who were likely to commit the tort unless restrained, (iii) it was possible to give effective notice of the injunction and (iv) the terms of the injunction corresponded to the threatened tort and were not so wide that they prohibited lawful conduct; that, further, the imposition of an order that interfered with protestors’ rights to freedom of expression and assembly under articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms had to be justified as necessary, not just expedient; that, in breach of their obligation to identify the individuals against whom they were pursuing their claim and make them defendants as promptly as practicable, the claimants had made no effort to narrow the class of persons unknown in a way that enabled them to be identified, even if not named, and for a decision to be made, on an assessment of the evidence, whether each person had committed or was threatening to commit a civil wrong; that the class of people potentially captured as “persons unknown” in the injunction could not properly be regarded as a homogenous unit, all of whom were guilty of, or complicit in, the wrongful acts about which complaint was made, nor did anything in the operative definition of “protestor” require or assume any wrongdoing on that person’s part, with the effect that the injunction captured in the net, indiscriminately, the guilty and the innocent with no way of distinguishing between them and making it impossible to identify against whom the court would or could enter judgment; that, therefore, the restrictions placed on demonstrations in the injunction were neither a necessary nor proportionate interference with the protestors’ article 10 and 11 rights; and that, since it would be fundamentally wrong in principle to grant judgment in a civil claim against a person when the court was not satisfied that the person had committed or was threatening to commit any civil wrong, it was inappropriate to grant summary judgment (post, paras 21, 68–70, 78, 81–82, 98–99, 111, 116, 146, 149, 150, 151, 154–156, 160–163, 165–166).

Ineos Upstream Ltd v Persons Unknown (Friends of the Earth intervening)[2019] 4WLR100, CA applied.

Summary of the law on service of proceedings including on “persons unknown” (post, paras 59–61).

Summary of the correct approach to human rights on an application for injunctive relief to restrain demonstrations (post, paras 98–99).