Practice and procedure – Trespass – Summary judgment – Appellant company applying for injunction against protestors to restrain harassment, trespass and other unlawful acts – Interim injunction granted against “persons unknown” – Some protestors served with injunction but none served with claim form – High court refusing summary judgment for final injunction – Appellants appealing – Whether judge erring in law – Appeal dismissed
The first appellant was an international retail clothing company which sold products containing animal fur and down. In November 2017 it opened a store in Regent Street, London. The second appellant was the store manager. The store had been the site of many protests from animal rights activists, against the use of animal fur and down and the sale of such clothing in the appellants’ store. A minority of protestors had committed unlawful acts.
The appellants sought injunctive relief and damages against the respondents as “persons unknown”. The appellants did not join any named defendants to the claim although, by that time, it knew the names of 37 of the protesters and had identified up to 121 individuals.
An interim injunction was granted to limit, but not prohibit, future protest. The order provided for alternative service of the interim injunction by email to two email addresses. The appellants emailed the order, the claim form and the particulars of claim to both email addresses.
The High Court subsequently dismissed an application by the appellants for summary judgment for a final injunction and discharged the interim injunction. The judge held, amongst other things, that the claim form had not been validly served on the respondents. The order for an interim injunction providing for alternative service related only to service of that specific order and the court refused to amend the order under the “slip rule” in CPR 40.12 or dispense with service under CPR 6.16. The description of the “unknown persons” respondents was too broad as it was capable of including protesters who might never intend to visit the store. The form of the proposed final injunction was defective in that it would capture new future protesters who were not parties to the proceedings: [2019] EWHC 2459 (QB). The appellants appealed.
Held: The appeal was dismissed.
(1) CPR 40.12 provided that the court might at any time correct an accidental slip or omission in a judgment or order. The slip rule enabled an order to be amended to give effect to the intention of the court by correcting an accidental slip, but it did not enable a court to have second or additional thoughts. The interim injunction did not provide for alternative service of the claim form and particulars of claim and the court was fully justified in refusing to exercise its powers under the slip rule.
(2) The “persons unknown” had to be defined in the originating process by reference to their allegedly unlawful conduct. Interim injunctive relief might only be granted if there was a sufficiently real and imminent risk of a tort being committed to justify it. As in the case of the originating process itself, the defendants subject to the interim injunction had to be individually named if known and identified or, if not and described as “persons unknown”, had to be capable of being identified and served with the order, if necessary by alternative service, the method of which had to be set out in the order. The prohibited acts had to correspond to the threatened tort. They might include lawful conduct if, and only to the extent that, there was no other proportionate means of protecting the claimant’s rights.
The terms of the injunction had to be sufficiently clear and precise to enable persons potentially affected to know what they might not do. The prohibited acts were not, therefore, to be described in terms of a legal cause of action, such as trespass or harassment or nuisance. They might be defined by reference to the defendant’s intention if that was strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant was capable of understanding and the intention was capable of proof without undue complexity. It was better practice, however, to formulate the injunction without reference to intention if the prohibited tortious act could be described in ordinary language without doing so. The interim injunction had to have clear geographical and temporal limits. It had to be time limited because it was an interim and not a final injunction: Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515 and Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] PLSCS 10 applied.
(3) Applying those principles to the present proceedings, it was clear that the claim form was defective and that the injunctions granted were impermissible. The description of the respondents was impermissibly wide. It was capable of applying to person who had never been at the store and had no intention of ever going there. Furthermore, the specified prohibited acts were not confined to unlawful acts. Both injunctions were also defective in failing to provide a method of alternative service that was likely to bring the attention of the order to the “persons unknown” as that was unlikely to be achieved by the specified method of emailing the order to the respective email addresses of two respondents. The interim order was defective in that it was not time limited but expressed to continue in force unless varied or discharged by further order of the court. The judge was bound to dismiss the appellant’s application for summary judgment and correct to discharge the interim injunction.
(4) A final injunction could not be granted in a protester case against “persons unknown” who were not parties at the date of the final order, ie, newcomers who had not by that time committed the prohibited acts and so did not fall within the description of the “persons unknown” and who had not been served with the claim form. Protester actions, like the present, did not fall within the limited circumstances in which a final injunction might be granted against the whole world. The usual principle applied that a final injunction operated only between the parties to the proceedings. The High Court was correct to dismiss the summary judgment on that further ground.
Ranjit Bhose QC and Michael Buckpitt (instructed by Lewis Silkin LLP) appeared for the appellants; the respondents did not appear and were not represented; Sarah Wilkinson appeared as Advocate to the Court.
Eileen O’Grady, barrister
Click here to read a transcript of Canada Goose UK Retail Ltd v Persons Unknown
