Some Typical Scenarios
Local Authorities and Travelling Communities
- E.g. South Cambridgeshire District Council v. Gammell [2006] 1 WLR 658.
- Section s.187B of the Town and Country Planning Act 1990; and Section 37 of the Senior Courts Act 1981 s.37.
Protesters
Fracking sites (e.g. Ineos Upstream Ltd v. Persons Unknown and others [2019] EWCA Civ 515.
Animal welfare activists (e.g. Canada Goose UK Retail Ltd. v. Persons Unknown and another [2020] EWCA Civ 303).
Building Sites and Urban Explorers
E.g. Canary Wharf Investments Ltd v. Brewer [2018] EWHC 1760 (QB).
Conflict in the Court of Appeal
❑Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303
❑Cannot grant a final injunction against ‘persons unknown’ which
includes ‘newcomers’.
❑Barking and Dagenham LBC v Persons Unknown [2022]
EWCA Civ 13
❑Can grant a final injunction against ‘persons unknown’ which includes
‘newcomers’.
Three Key Cases:
❑South Cambridgeshire District Council v. Gammell [2006] 1 WLR 658
❑[32]-[33] - there was no need to join newcomers to an action in which injunctions against persons unknown had been granted and knowingly violated by those newcomers. In such cases, the newcomers automatically became parties by their violation.
Three Key Cases:
❑Cameron v. Liverpool Victoria Insurance Co Ltd [2019] UKSC 6
❑Lord Sumption at [13]: two categories, (i) anonymous defendants who are identifiable but whose names are unknown (e.g. squatters), and (ii) defendants, such as most hit and run drivers, who are not only anonymous but cannot even be identified.
❑At [17] 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.”
Three Key Cases:
❑Ineos Upstream Ltd v. Persons Unknown and others [2019] EWCA Civ 515
❑[30] – “there is no conceptual or legal prohibition on suing persons unknown who are not currently in existence but will come into existence when they commit the prohibited tort”.
Barking and Dagenham LBC v Persons Unknown [2022] EWCA Civ 13
❑Canada Goose was wrongly decided and was inconsistent with a proper understanding of Gammell, Cameron and Ineos [85].
❑No distinction between interim and final injunctions [89].
❑The ‘end point’ is not a trial, but the discharge of the injunction
[92].
Ineos Guidance
❑Ineos
❑Same considerations applied in ‘protestor’ cases.
- Suggested six “requirements necessary for the grant of the injunction against unknown persons” (at [34]):
- 1) there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
- 2) it is impossible to name the persons who are likely to commit the tort unless restrained;
- 3) it is possible to give effective notice of the injunction and for the method of such notice to be set out in the order;
- 4) the terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;
- 5) the terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do; and
- 6) the injunction should have clear geographical and temporal limits.
Canada Goose: Guidance at [82]
- (1) The "persons unknown" defendants in the claim form are, by definition, people who have not been identified at the time of the commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. The "persons unknown" defendants must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary by alternative service such as can reasonably be expected to bring the proceedings to their attention. In principle, such persons include both anonymous defendants who are identifiable at the time the proceedings commence but whose names are unknown and also Newcomers, that is to say people who in the future will join the protest and fall within the description of the "persons unknown".
- (2) The "persons unknown" must be defined in the originating process by reference to their conduct which is alleged to be unlawful.
- (3) 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 relief.
- (4) As in the case of the originating process itself, 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.
Canada Goose: Guidance at [82]
- (5) The prohibited acts must correspond to the threatened tort. They may include 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. The prohibited acts must not, therefore, be described in terms of a legal cause of action, such as trespass or harassment or nuisance. They may be defined by reference to the defendant's intention if that is strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant is capable of understanding and the intention is capable of proof without undue complexity. It is better practice, however, to formulate the injunction without reference to intention if the prohibited tortious act can be described in ordinary language without doing so.
- (7) The interim injunction should have clear geographical and temporal limits. It must be time limited because it is an interim and not a final injunction. We shall elaborate this point when addressing Canada Goose's application for a final injunction on its summary judgment application.”
Where are we now?
❑No difference between interim and final injunctions.
❑No difference between ‘protestor’ and ‘traveler’ cases.
❑No difference to court’s approach if injunction sought under s.187B or s.37 Senior Courts Act (Barking and Dagenham at [7]).
❑Claimants: Guidelines from Ineos should be followed – the extent to which the additional gloss of Coulson LJ’s from Canada Goose will be followed is not clear.
❑Newcomers: aware of the order? Apply to have the order (interim or final) varied/set aside under CPR 40.9.
❑A word of warning for Claimants - Ineos [2022] EWHC 684 - 25 March 2022.
