English High Court discusses protest injunctions against “persons unknown”

In Canada Goose UK Retail Limited and another v Persons Unknown and another [2019] EWHC 2459, the High Court discussed certain procedural principles applicable to injunctions against “persons unknown” in a protest context.

Canada Goose had applied for summary judgment and a final injunction following an interim injunction preventing “persons unknown” (and People for the Ethical Treatment of Animals (PETA) Foundation) from carrying out a number of defined protest activities outside its Regent Street store. “Persons unknown” was defined as “…protestors against the manufacture and sale of clothing made or containing animal products and against the sale of such clothing at Canada Goose, 244 Regent Street, London E1B 3BR”.

Nicklin J refused the application, and discussed the principles applicable to injunctions against protest activities where the identity of the defendant is (at least at some stage) unknown. The Judgment builds on recent decisions of the Supreme Court in Cameron v Liverpool Victoria Insurance [2019] 1 WLR 1471 and Court of Appeal in Boyd v Ineos [2019] 4 WLR 100.

The Court emphasised the need for

(1) precision in the terms of orders, to ensure that defendants are properly identified and only unlawful conduct is restrained; and

(2) care in dealing with issues relating to service.

The Court also stressed the intense scrutiny required of injunction applications involving “persons unknown” to ensure compatibility with Human Rights Act provisions.

Who are the defendants and have they committed any wrong? 

In the Court’s view, 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 the Court to decide as to whether each person had committed a wrong.

The Judge considered that the definition of “persons unknown” in this case did not capture a homogeneous class of persons and, importantly, that there was nothing in the definition of “protestor” which required or assumed any wrongdoing. The Court must be satisfied that a defendant has committed (or threatens to commit) a civil wrong. In addition, the proposed order prohibited certain protest acts that were not unlawful per se (for example simply “entering the store” or demonstrating outside the store). As a result, the order sought would capture “indiscriminately the ‘guilty’ and the ‘innocent’ with no way of distinguishing between them”.

In the Court’s assessment, the Claimants were required to identify the individuals against whom they were pursuing their claim and make them defendants to the claim “as promptly as practicable”. The Court noted that the Claimants could, in fact, at the time of the hearing have named 37 protestors and identified up to 121, and was critical that it chose not to join a single individual protestor as a defendant at any time. Although the identities of the wrongdoers may have been unknown when the interim injunction was granted, that was no longer the case.

Service of the Claim Form 

The Court found that there had been no valid service of the Claim Form on any person falling within the class of “persons unknown”. The Court rejected the Claimants’ attempt to argue that each time a protestor was served with the interim injunctive order they had thereby become a defendant to the litigation. Instead the Court required proper service of the Claim Form and Response Pack (or specific provision for alternative service or dispensation). It was a “fundamental” principle that defendants be given proper notice of a claim and reasonable opportunity to defend. Although there may be practical difficulties where the identity of the defendant is not presently known, that “does not lessen the obligation to attempt to do so”.

Some take away practical points:

1. When seeking orders against unknown defendants, try to avoid overly broad definitions and seek to capture only those who are committing (or who threaten) wrongful conduct
2. Consider joining persons unknown to proceedings at an early stage. Recognise that this may develop over time – “persons unknown” may become “persons known or knowable” as time moves on
3. Consider carefully service issues with respect to the Claim Form (as well as of any injunctive order itself) and consider seeking an order for alternative methods of service
4. It was relevant that a significant basis for the claim was restraint of alleged harassment, where issues of definition are more complex than, for example, for a breach of a defined property right or trespass