When can the courts issue injunctions against people who cannot be identified but who they suspect may be intending to engage in a wrong?

The English Court of Appeal in Joseph Boyd & Ors v Ineos Upstream Limited & Ors [2019] EWCA Civ 515 has given important guidance on when the Court may issue injunctions against persons unknown to prevent the commission of a wrong. In that case, injunctions were granted at first instance against four out of five groups of defendants, described as "persons unknown" and thought likely to become involved in unlawful protests against "fracking" (shale gas exploration) at sites selected by the Ineos Group of companies. An appeal was brought by interested persons and groups including the lobbying group 'Friends of the Earth', who, though not the subject of the injunctions, had been permitted to intervene in the action.

A wizard wheeze

Mr Justice Longmore, giving judgment on behalf of the Court of Appeal (Lord Justice David Richards and Lord Justice Leggatt concurring), explained that since the advent of the Civil Procedure Rules, there has been no requirement to name a defendant in a claim form and that orders had been made against "persons unknown" in appropriate cases.

The first such case was the well-known 'Harry Potter' case Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] 1 WLR 1633, in which unknown persons had illicitly obtained advance copies of "Harry Potter and the Order of the Phoenix" and were trying to sell them to newspapers. Sir Andrew Morrit V-C made an order against persons who had offered various publishers copies of the book and persons who had physical possession of a copy of it.

Counsel for the respondents cited Lord Sumption's comments in the Supreme Court judgment Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, to suggest an injunction was inappropriate. In that case, Lord Sumption distinguished between "anonymous defendants who are identifiable but whose names are unknown" and "anonymous defendants who cannot even be identified", such as most 'hit and run' drivers. Those in the second category could not be sued because to do so would be contrary to the fundamental principle that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as would enable him to be heard.

Mr Justice Longmore however thought that Lord Sumption's comments may have been taken out of context. It was "too absolutist" to say that a claimant can never sue persons unknown unless they are identifiable at the time the claim form is issued. As a consequence, the Court of Appeal held there was "no conceptual or legal prohibition on suing persons unknown who are not currently in existence when they commit the prohibited tort".

Caution – injunction ahead

As a general rule, courts should be "inherently cautious" about granting injunctions against unknown persons. Mr Justice Longmore framed the requirements as follows:

  • There must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
  • It is impossible to name the persons who are likely to commit the tort unless restrained;
  • It is possible to give effective notice of the injunction and for the method of such notice to be set out in the order;
  • The terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;
  • 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
  • The injunction should have clear geographical and temporal limits.

How slow is slow?

Whilst the Court of Appeal found there was no issue about the first three requirements in the present case, the order given by the Judge at first instance in respect of the remainder was more problematic. As drafted, the Judge's orders in relation to public rights of way and conspiracy to cause damage by unlawful means, were too wide and insufficiently clear. Case in point – the orders banned "slow walking", but how slow is slow? The concept of "unreasonably obstructing the highway" was a question of fact and degree that was incapable of being defined in advance. The "citizen's right of protest" was not to be diminished by advance fear of committal except in the clearest of cases.

The Court of Appeal discharged the injunctions against the third and fifth defendants and dismissed the claims against them. Injunctions against the first and second defendants were maintained, pending remission to the Judge to consider whether interim relief should be granted in light of section 12(3) Human Rights Act 1998 (concerned with the right to freedom of expression) and, if so, whether such relief should be time-limited.

Who is who in Hong Kong?

In Hong Kong, similar principles were considered by Mr Justice Godfrey Lam in University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd (No 2) [2016] 4 HKLRD 113. The University  brought an action against "person or persons unknown who has or have appropriated, obtained and/or offered or intend to offer for sale and/or publication" confidential information arising out of a governing body meeting set to choose a new Vice-President and Pro-Vice Chancellor.

Citing Bloomsbury, Lam J said that it was now established that a writ of summons can be issued against a defendant without naming them, provided that the description is sufficiently certain so as to identify both those who are included and those who are not.

Given the nature and quality of the information involved, Lam J considered that a final injunction was a proportionate and necessary restriction on the right of free speech. The Court however refused to grant the University's application for a declaration that the "unknown persons" cited as defendants were acting in breach of their duty of confidence insofar as they were publishing or communicating the information without the University's consent. The declaration sought was hypothetical and artificial and served no real purpose.

Together, the cases demonstrate the courts' determination both to prevent possible wrongs being committed whilst maintaining the right to freedom of expression within proportionate bounds.

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