Court of Appeal refines guidelines for injunctive relief against 'persons unknown' in a protest context (England and Wales)

In Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303, the Court of Appeal has refined guidelines for injunctive relief against 'persons unknown' in a protest context.

Canada Goose appealed the High Court’s refusal to grant summary judgment on its application for injunctive relief and against the discharge of interim injunctions granted in its favour (see here for an analysis of the previous High Court decision). The Court refused Canada Goose’s appeal on all grounds and provided useful further guidance when seeking interim relief against 'persons unknown' in anticipated protestor action.

Key takeaways

1. With respect to service of proceedings, pay close attention to alternative service and efforts to bring the claim form to the attention of protestors. Don’t expect the Court to come to the rescue.
2. Be mindful of the revised guidelines set out by the Court for interim relief in protestor cases.
3. While lawful activity may in principle be prohibited by the injunction, this should be exceptional.
4. Try to avoid framing the terms of the injunction by reference to the defendant’s intention.

Service of the claim form 

Canada Goose argued that Nicklin J had erred in refusing to use the 'slip in' rule (CPR 40.12) or the Court’s inherent jurisdiction to provide for alternative (or to dispense with) service (while the original order had specified alternative service for the order itself, it was silent as to the claim form).

While CPR 40.12 allows the Court to correct an accidental error to give effect to the intention of the court, it does not enable it to have 'second or additional thoughts'. This was not an example of the former. 

Echoing Lord Sumption in Cameron v Liverpool Victoria Insurance Co Ltd, Nicklin J was plainly correct in his refusal with respect to the 'persons unknown', and the Court emphasised the importance of service to ensure justice is done, with the object of service being to bring the proceedings to the attention of the defendant as much as can reasonably be expected.

The Court was mindful that: 

• there was nothing in the original order requiring wider notice of the proceedings to be given to anyone; 
• no effort was made to join even those who could be individually identified to the proceedings; and 
• Canada Goose also asked for dispensation from service for unknown persons who had never been served with the order. 

The Court was unsympathetic to 'speculative estimates' as to the larger class of protestors who Canada Goose claimed were likely to know of the proceedings simply as a result of the order having been served on other individuals. 

Those were not the kind of 'exceptional circumstances' that justify an order under CPR 6.16 to exonerate Canada Goose from failing to obtain an order for alternative service.

Interim injunctions 

In finding that the High Court was correct to discharge the interim injunctions, the Court refined the Boyd & Anor v Ineos Upstream Ltd & Ors guidelines for interim relief against unknown persons in protestor cases.

Importantly, the Court qualified the fourth Ineos requirement – that the terms of the injunction must not be so wide that they prohibit lawful conduct – to the effect that lawful activity may be prohibited against persons unknown who are 'newcomers' wishing to join an ongoing protest, where there is no other proportionate means of protecting the claimant’s rights (newcomers being persons not currently in existence but who will come into existence when they commit the prohibited tort in question).

The Court also considered the fifth Ineos requirement – that the terms of the injunction must be sufficiently clear and precise to enable persons potentially affected to know what they must not do, with respect to whether there is room for any reference to the defendants’ intention. 

The Court considered Cuadrilla Bowland Limited v Persons Unknown [2020] EWCA Civ 9 and confirmed that, while it is in theory permissible to refer to the defendant’s intention, better practice is to avoid it if the prohibited act can be described in ordinary language without doing so.

The Court at [82] set out revised guidelines for interim relief against persons unknown in protestor cases, refining Cameron and Ineos:

1. 'Persons unknown' defendants must not have been identified when proceedings are started but must be capable of identification and service (if necessary by alternative service). Such persons include both anonymous defendants who are identifiable at the time proceedings commence but whose names are unknown, but also may include 'newcomers'.
2. 'Persons unknown' must be defined in the originating process by reference to their conduct which is alleged to be unlawful.
3. Interim relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed.
4. The defendants subject to the interim injunction must be individually named if known and identified or, if not and described as 'persons unknown', must be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order.
5. The prohibited acts must correspond to the threatened tort. A court may prohibit lawful conduct if and only to the extent that there is no other proportionate means of protecting the claimant’s rights.
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. References to a defendant’s intention in the definition of prohibited acts must be limited to those strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant is capable of understanding. Better practice is to avoid reference to intention if the prohibited act can be described in ordinary language without doing so.
7. Interim injunctions should have clear geographical and temporal limits.

Final injunctions against 'persons unknown'

The Court reiterated the principle that a final injunction operates only between the parties to the proceedings. A final injunction cannot be granted in a protester case against 'persons unknown' who are not parties at the date of the final order, ie newcomers who have not by that time committed the prohibited acts (and so do not fall within the description of 'persons unknown') and who have not been served with the claim form.

That is not to say that there is no scope for making 'persons unknown' subject to a final injunction, provided they are identifiable as having committed the prohibited acts prior to the date of the final order (albeit anonymous) and have been served prior to the date, which was not the case with the proposed final injunction sought by Canada Goose.