MBR Acres Limited & Ors v Free the MBR Beagles & Ors

This judgment deals with the Claimants’ application to vary the interim injunction that was granted on 10 November 2021 (“the variation application”) (see Section B: [13]-[17] below). It also deals with a discrete point about whether Gillian McGivern has become a defendant to the proceedings (see Section F: [81]-[88] below).

The general background to the litigation, and the reasons for granting the injunction are contained in the judgment handed down on that date ([2021] EWHC 2996 (QB)) (“the Injunction Judgment”).

Alternative service orders

On 12 August 2021, the Court granted permission for alternative service of the Claim Form on the “Persons Unknown” Defendants. The order provided:

“Pursuant to CPR Part 6.14, 6.15, 6.26 and 6.27 the Claimants have permission to serve the Tenth Defendant, Persons Unknown, by the following alternative forms of service:

(1)

Affixing copies (as opposed to originals) of the Claim Form, the Injunction Application Notice, draft Injunction Order and this Order permitting alternative service, in a transparent envelope on the gates of the First and Third Claimants’ Land and in a prominent position on the grass verge at the front of the First and Third Claimant’s Land.

(2)

The documents shall be accompanied by a cover letter in the form set out in Annexure 2 explaining to Persons Unknown that they can access copies of

(a)

the Response Pack;

(b)

evidence in support of the Alternative Service and Injunction Applications; and

(c)

the skeleton argument and note of the hearing of the Alternative Service Application

at the dedicated share file website at: [Dropbox link provided]”

(3)

The deemed date of service for the documents referred to in (1) to (3) above shall be two working days after service is completed in accordance with paragraphs (1) to (3) above.

The Defendants (including those in the category of “Persons Unknown”) were required to file an Acknowledgement of Service 14 days after the deemed date of service.

Similar orders have been made for service of the Claim Form by an alternative method on the additional categories of Persons Unknown Defendants as they have been added to the claim. Following the imposition of the exclusion zone by the interim injunction order of 10 November 2021, the location at which the relevant documents were to be displayed was moved to a noticeboard opposite the entrance of the Wyton Site.

Initial hearings of the variation application

The variation application was originally listed to be heard on 20 June 2022, but it had to be adjourned – see [13]-[17] of the further judgment of that date ([2022] EWHC 1715 (QB)). It was relisted to be heard on 21-22 July 2022. However, the time allocated for the hearing of the variation application had to be reallocated to deal with a contempt application that the Claimants had brought against Gill McGivern (see judgment [2022] EWHC 2072 (QB) (“the McGivern Contempt Judgment”)). The Court was able to make additional time available on 25 July 2022 to hear the variation application, but one day was insufficient, and the hearing had to be adjourned, part-heard, to 7 October 2022.

Variations to the interim injunction made on 25 July 2022

Pending the adjourned hearing of the variation application, I did, however, accept, at the hearing on 25 July 2022, that some limited modifications should be made to the interim injunction. The affected Defendants did not oppose the changes and they took effect in a revised injunction order of 2 August 2022.

The 10 November 2021 order provided, so far as material, that the Defendants (both named and “Persons Unknown”) must not:

“… approach and/or obstruct the path of any vehicle directly entering or exiting the Exclusion Zone (save that for the avoidance of doubt it will not be a breach of this Injunction Order where any obstruction occurs as a result of an emergency).”

The 2 August 2022 order replaced that restriction with the following prohibitions:

“(2)

The Third to Ninth and Eleventh to the Twenty-Fourth Defendants MUST NOT within 1 mile in either direction of the First Claimant’s Land, approach, slow down, or obstruct any vehicle which is believed to be travelling to or from the First Claimant’s Land at the Wyton Site.

(3)

The Seventeenth Defendant MUST NOT within 1 mile in either direction of the First Claimant’s Land, approach, slow down, or obstruct any vehicle:

(a)

for the purpose of protesting and/or campaigning against the activities of the First and/or Third Claimant; and

(b)

where the vehicle is, or is believed to be, travelling to or from the First Claimant’s Land at the Wyton Site.

(4)

The Third, Twelfth, Fifteenth, Twentieth and Twenty-Second Defendants MUST NOT cut, push, shake, kick, lift, climb up or upon or over, damage or remove, or attempt to remove any part of the perimeter fence to the Wyton Site, as marked in red on the attached plan at Annex 1.”

In respect of obstruction of vehicles (the subject of the new sub-paragraphs (2) and (3)), evidence of events following the grant of the injunction, particularly that which had been filed by the Claimants in relation to the contempt applications against the Twelfth and Thirteenth Defendants (see [2022] 3 WLR 999), showed that some protestors had adopted tactics of surrounding and/or obstructing vehicles that were travelling to or from the Wyton Site further along the carriageway of the B1090. It had also become apparent that the earlier formulation – prohibiting approaching/obstruction of any vehicle “directly” entering or exiting the exclusion zone – had the potential to catch behaviour that the injunction was not designed to prevent. A particular example was an occasion in which a police vehicle was about to exit the exclusion zone when it was obstructed by protestors who wanted to ascertain what was happening to a person who had been arrested. The exclusion zone has always been recognised to be an expedient, justified because it is the best way of avoiding the flashpoints that have occurred between the protestors and those coming and going to/from the Wyton Site. However, the Court will keep the terms of the any interim injunction under review – and in appropriate cases will make changes to the terms of the order – to ensure that they are not having an unintended effect. The revised restrictions now more directly focus on the obstruction of vehicles travelling to/from the Wyton Site where that obstruction is for the purpose of protesting.

Sub-paragraph (4) contained a new prohibition upon interfering with and/or damaging the perimeter fence of the Wyton Site. I was satisfied on the Claimants’ evidence that the relevant Defendants had been damaging or interfering with the fence. Such actions are tortious, are not an exercise of a right to protest and the balance of convenience clearly favoured an interim prohibition. The Claimants had asked for a 1 metre exclusion zone to be imposed around the entire perimeter of the Wyton Site. I refused to make such an order. The correct way of targeting this particular wrongdoing is by making a direct order that prohibits that behaviour, not an indirect order that would also restrict lawful activities. The Claimants do not own the land over which they were seeking the imposition of this further exclusion zone, so I was not persuaded that there was an adequate legal basis upon which to impose the wider restriction that they had sought.

Concerns as to the operation of the interim injunction order

The operation of the interim injunction over the last 12 months has given cause for concern about whether the order is being used by the Claimants as a ‘weapon’ against the protestors or their supporters. The contempt application against Ms McGivern was dismissed. I found that the breaches alleged against Ms McGivern were trivial: see McGivern Contempt Judgment [96]. The Claimants well know, and fully understand, the basis on which the exclusion zone has been imposed. It is not to be used by the Claimants as an opportunity to take action against protestors for trivial infringements that have none of the elements that led to the grant of the interim injunction and are not otherwise unlawful acts. Ultimately, if there were to be any repetition of contempt applications being brought for trivial infringements, then the Court might have to reconsider the terms of the interim injunction order that should remain in place pending trial.

The Application Notice seeking the variation to the interim injunction was issued on 22 March 2022. By the time of the hearing on 7 October 2022, and in light of the amendments to the interim injunction that had been granted by the Order of 2 August 2022 (see [9] above), the Claimants had narrowed the terms of the variation that they sought.

The effect of the revised definition of “Protected Persons”, the definition of the class represented by the Second Claimant, and the various definitions of the “Persons Unknown” Defendants is to seek the imposition of an interim injunction that has a potentially very wide reach, well beyond the protest activities at the Wyton Site, with which the Court has previously been concerned. The restrictions in the new sub-paragraph (5) would prohibit the named Defendants to whom it applied and the Thirty-First and Thirty-Second Defendants “Persons Unknown” from attempting to “compel and coerce” any staff member of the First Claimant, contractors of the First Claimant working at the Wyton Site and staff of Impex, to “cease their lawful activities for or on behalf of the First Claimant” by doing any of the acts in sub-paragraphs (a) to (c).

The Claimants have withdrawn those parts of the variation application which sought to impose further restrictions on both named Defendants and “Persons Unknown” (in various categories) prohibiting:

I was sceptical that the Claimants could establish a proper legal basis for these restrictions, and in respect of some of them (e.g. the restrictions on CCTV footage), the Particulars of Claim contained no recognisable claim which would justify the grant of interim relief in the terms sought. Some time was taken up, at the hearing on 25 July 2022, considering the legal basis for restrictions on drone usage and whether, and if so, in what circumstances and at what height, flying a drone over land is an actionable trespass. I had refused to grant an interim injunction to prohibit drone flying on 10 November 2021 (see [2021] EWHC 2996 [111]-[115]). Had the application in respect of drones been maintained, I would have needed to consider whether the Claimants should be allowed a second opportunity to advance what was, essentially, the same argument that had been rejected last year. In the event, the Claimants withdrew that part of their application before the hearing on 7 October 2022.

There were also added complications as to both the grant, and the enforcement, of an interim injunction against “Persons Unknown” in relation to drone use. Permission for alternative service of the Claim Form on the Thirty-Third Defendants “Persons Unknown” has not yet been granted. Unless the Claim Form is properly served – if necessary pursuant to an order for alternative service – the jurisdiction of the Court will not have been established over the relevant defendant (or category of defendant) and, in consequence, there can be no question of any interim relief being granted. That, in turn, raises questions as to whether a method of alternative service could be devised that would bring the claim to the attention of all of those in the class of the Thirty-Third Defendants “Persons Unknown”: see discussion in LB Barking & Dagenham -v- Persons Unknown [2021] EWHC 1201 (QB) [46]-[48]. I will need to return to this issue when considering the variation in paragraph (5) sought by the Claimants (see [71]-[72] and [75] below).

Generally

The variation application was originally supported by the ninth Witness Statement of Susan Pressick, the Site Manager and UK Administration & European Quality Manager for the UK subsidiaries of Marshall Farm Group Ltd. This evidence has been supplemented by nine further witness statements, each ostensibly providing an ‘update’ as to events that had happened since the last witness statement. Reliance has also been placed on the earlier eighth witness statement of Ms Pressick.

Had the issues not been narrowed by the 7 October 2022 hearing, the large number of witness statements filed by Ms Pressick would have posed significant challenges for both the Court and the named Defendants, particularly those who are representing themselves. Generally, Ms Pressick’s witness statements contain a chronological list of incidents which the Claimants wish to bring to the Court’s attention. Most of these incidents relate to the actions of unidentified (and unidentifiable) individuals. Even in support of the Claimants’ claims against “Persons Unknown”, this evidence might be thought to be of limited value. A single example (from a host of others), is this from Ms Pressick’s tenth witness statement, relating to an incident on 26 April 2022:

“At approximately 06.00 and 07.45, unknown protesters approached the site of the Wyton Site. Three pieces of wood were thrown over the fence, the first at around 06.00, and the other two at around 07.45. Unfortunately, MBR’s CCTV did not capture the wood being thrown, but it appears that the pieces of wood were thrown at security guards as they were touring the inner perimeter if the Wyton Site. I understand that one of the pieces of wood narrowly missed hitting one of the security staff.”

There are also many complaints about what has been posted online – again by unidentified people.

I do not presently understand what point this evidence is supposed to support or how it is thought it will assist the Court. Throwing items over the perimeter fence of MBR may be anti-social, but the Claimants have not alleged that it is unlawful, and they have not identified any civil wrong that is committed by doing so. It is also not immediately apparent what part of the variation application this evidence is directed towards or meant to support.

The deployment of evidence like this, and much more besides, does not assist the Court in determining the issues that must be resolved. On the contrary, it obstructs the fair disposal of the proceedings because of the time taken to consider the evidence both before and during the hearing. For the named Defendants, they are confronted with the challenge of reading these witness statements to identify what, if anything, is being alleged against them personally. Often only a tiny fraction of the witness evidence relied upon by the Claimants relates to any of the named Defendants. As this action proceeds towards trial, the Court will need to ensure that the claims being advanced against the individual named Defendants, and the evidence in support, are isolated and presented separately from the material that relates only to the claim made by the Claimants against “Persons Unknown”. The Claimants must adopt a more focused approach to evidence, even that in support of the claim against “Persons Unknown”.

The alleged targeting of Impex

The key issue, at the hearing on 7 October 2022, was the alleged targeting by protestors of Impex Services International Limited (“Impex”). Impex is licensed by the Home Office to transport animals for medical research and provides services to the First Claimant by transporting animals from the Wyton Site to facilities at which animal testing is carried out. This has meant that Impex has become a secondary focus of some of the protestors. In short, some protestors want Impex to cease transporting animals reared by the First Claimant for animal testing. A complicating factor, potentially, is that Impex provides animal transport facilities for companies other than the First Claimant.

The case pleaded in the Particulars of Claim

At the date of the hearing, the Claimants’ pleaded case in relation to Impex is contained in the following parts of the Amended Particulars of Claim:

The Particulars of Claim make the following allegations against the Thirty-First Defendants “Persons Unknown” concerning the targeting of Impex. On 18 January 2022, the Thirty-First Defendants are alleged to have:

As a result of these alleged acts of harassment, the Claimants allege that Impex has ceased trading from the targeted site and moved its operations elsewhere.

Based on these allegations, the Claimants’ claim is put in this way in the Amended Particulars of Claim:

“489.

By doing, aiding, abetting, counselling or procuring the conduct complained of in paragraphs 487.1 to 487.12, D3, D20, D25 and D31 have pursued a course of conduct targeted at Impex’s director and staff, who are a member of the Second Claimant class, which amounts to harassment of IMPEX’s staff and its [managing director], and which D3, D20, D25, and D31 knew or ought to have known amount to harassment of members of the Second Claimant class, and is thereby contrary to section 1 and or 1(1A) of the Protection from Harassment Act 1997.

490.

The course of conduct particularised in paragraphs 487.1 to 487.12 above was targeted at the Second Claimant class, and in particular at Impex’s [managing director] and staff, to cause [the managing director] to terminate Impex’s contractual relationships with the First Claimant.

491.

The said harassment has caused IMPEX’s staff and [the managing director], who are members of the Second Claimant class, alarm and distress both as a result of the incidents that they have experienced, and by virtue of the course of conduct pursued against them, as set out in paragraphs 487.1 to 487.12 above.

492.

The course of conduct particularised in paragraphs 487.1 to 487.12 above is oppressive and unacceptable in that it was designed and intended to torment and intimidate Impex’s director and staff, as a member of the Second Claimant class, in an effort to cause Impex’s director to terminate its contractual relationships with the First Claimant and/or cease supplying services to the First Claimant, as is plain from paragraphs 487.1 to 487.12 above.

493.

It can be inferred from the conduct complained of at paragraphs 487.1 to 487.12 above, its repeat occurrence, and the express words used by D3 and/or D20 and/or D25 and/or D31 that D3, D20, D25, and D31 intends to continue to harass members of the Second Claimant class including, but not limited to, IMPEX’s staff and [the managing director], unless restrained by way of an injunction. Accordingly, the First and Second Claimant seek an injunction restraining D3, D20, D25, and D31 from pursuing any conduct that amounts to harassment in the terms set out in Order at Schedule 1 to these Particulars of Claim, or in the terms that the Court considers appropriate.”

The presence of the Thirty-First Defendants Persons Unknown, repeatedly, throughout those paragraphs may well lead to issues at trial. The statement of case uses the Thirty-Defendants essentially as a ‘catch-all’ term for any unidentified person who is alleged to have carried out acts of harassment. It is impossible, from the statement of case, to work out which “person unknown” is alleged to have done which act(s).

The Claimants’ evidence

The evidence relating to incidents concerning Impex is contained in several of Ms Pressick’s witness statements.

In her ninth witness statement, Ms Pressick sets out the evidence in support of the incidents concerning Impex in January 2022. This evidence is presented as having been provided to Ms Pressick by an “Impex Director”, who is not named in her statement, but it appears from the information that he provided to Ms Pressick that this is the Managing Director of Impex who has more recently provided a letter to the Claimants (see [32] below).

In her sixteenth witness statement, Ms Pressick gives evidence of the following further incidents:

In her seventeenth witness statement, Ms Pressick complains of the following:

The Claimants have adduced in evidence a letter, dated 3 October 2022, to the First Claimant from the Managing Director of Impex. The material parts of this letter are:

“I am writing on behalf of Impex. As the protestors and you know, Impex supplies services to MBR. We were previously listed as a supplier which was specifically protected by an injunction which the previous owner of your site (Harlan) had in 2012. Whilst I know you have got a new injunction, I understand the court has not yet permitted similar protections for suppliers as what Harlan had in 2012. I know you are planning to apply for similar protections for suppliers as what Harlan had which for the reasons set out below Impex would support.

As you know, we operate from a set of premises where we do not post the name of the business at the site – i.e. the site is unmarked…

Despite this, since January 2022, Impex has been severely targeted by the protestors targeting your business. The protestors have been able to work out that Impex works with MBR which is why I believe we are being targeted now. On 20 January 2022, I saw Free the MBR Beagles posted a video on its Facebook page with the title “IMPEX: WE ARE WATCHING”. In the video, there is a video of me with a van at Heathrow airport unloading items into a bonded warehouse. I made the delivery a couple of weeks before Christmas 2021.

I understand from you that the protestors who have been seen on social media at our site are the same people who have been at your site such as Mel Broughton [Third Defendant], Lisa Jaffray [Twentieth Defendant] and Scott Paterson [Sixth Defendant]. They regularly hold ‘Free the MBR Beagles’ placards or place ‘Free the MBR Beagles’ posters on our premises. I have seen tweets from Michael Maher [Twelfth Defendant] recently saying ‘We must close down Scumpex weak link to MBR Acres. Come on Activists what you waiting for!’ Clearly we are being targeted because of the work we do for you.

The protestors target the business but also my family and home. The conduct of the protestors is not legitimate protest. It is a campaign of harassment and intimidation. I have listed some examples of what they have done recently.

Targeting of Impex’s premises

•

On 18 January 2022, protestors ‘locked on’ at the Impex site known as [location given]. When I visited the site that day, the Protester (shouting) called me a ‘cunt’ and ‘animal murderer’ and told me that I ‘should be ashamed’. Protestors climbed on the roof of the office building, with one protestor using a loudhailer to shout, ‘Shut down Impex!”. Protestors locked a motorcycle lock to the gate of the Impex Site so that no one could gain entry to the premises all day. During the day, there were about 20-25 protestors at the Impex Site. Because of all of this, Impex was not able to move its vans or conduct business that day.

•

Protests at our premises have continued routinely since then. The windows of the premises have been smashed in. We regularly find the gate is locked and we have to use an angle grinder to unlock the gates. When we drive out we find protestors trying to block the vans. We get hurled abuse at when the protestors are there.

Targeting me, my family and home:

•

As you are aware, the protestors (connected to what I will call ‘Camp Beagle’) have also targeted me directly. This started in January 2022, but is continuing even with police intervention.

•

On 18 January 2022, protestors came to my family home (which I share with my wife and school-aged children) where they not only held up … signs and set out smoke grenades, but… they came [on] to my property, caused criminal damage, and attacked the front door with their fists and hit the utility room window, shouting ‘animal murderers’ and ‘killers’. The director (sic) and his wife were terrified by this behaviour.

•

A couple of days later, protesters attempted to pick the lock [at my] home on 20 January 2022.

•

At the end of January, I was driving and had to swerve to avoid colliding with another car (which appeared to be [heading] directly towards me, without headlights). It was subsequently confirmed that Lisa Jaffray [Twentieth Defendant], a [defendant] in the proceedings was driving the car. This another indication of the clear link between Camp Beagle and the protesters targeting me and my family.

•

More recently, on 17 September, a number of protesters gathered outside my home. The person I understand to be from TCM Digital was there, together with Sammi Laidlaw. This emphasise[d], to me, the connection between the protesters at Camp Beagle and the targeting of Impex and my family. I know that one woman was arrested.

•

We regularly have protesters now camping on a green outside of our home and regularly need to call the police.

As you are aware, the protesters behaviour has had a significant impact on Impex and me and my family. The staff and drivers at Impex have been intimidated and frightened by the protestors. One of our drivers [has] left, stating that they do not want to risk their safety given how violent the protestors have been at the Wyton Site. Another driver has refused to do any more deliveries for MBR as they are concerned for their safety. Me and my family have been intimidated by the protestors and are fearful of violence from them due to repeated threats and visits to my home. We have the right to a family life. My family fear leaving the house.

Impex has incurred significant costs as a result of not being able to carry out our work effectively, and have also incurred costs repairing damage and implementing additional security measures. At one point in March 2022, we were forced to move sites due to continued protests, which also caused us to incur costs.

I believe that an injunction restraining the protestors connected to the groups ‘Free the MBR Beagles’ and/or ‘Camp Beagle’ (including those named in the Proceedings) from harassing MBR’s suppliers is necessary to prevent (or at least deter) behaviour such as that described above.”

Impex’s Managing Director has not provided a witness statement in support of the variation application. That is surprising, particularly given the obvious importance of his evidence and the ample opportunity that the Claimants have had to obtain one. Had the Claimants’ solicitors taken a proper witness statement from him, it is likely that it would have contained better evidence. In particular, a solicitor would have understood the need to identify the individuals who were alleged to have targeted Impex and, crucially, precisely what each individual was alleged to have done. The Managing Director’s letter is vague and imprecise, particularly as to the identity of the alleged wrongdoers. It is also clear that, in material respects, he has been provided with information from the Claimants’ side, which makes it difficult to be clear about which information the Managing Director knows personally, and which has been provided to him by others.

Alleged targeting of the First Claimant’s employees

The Claimants allege that the First Claimant’s staff have been the subject of harassment in breach of both s.1(1) and s.1(1A) Protection from Harassment Act 1997.

Principally, this claim is brought against the Thirty-First Defendants “Persons Unknown”, who are defined as:

“[Persons] who are protesting outside the premises of the First Claimant and/or against the First Claimant’s lawful business activities and pursuing a course of conduct causing alarm and/or distress to the Second Claimant and/or the staff of the First Claimant for the purpose of convincing the Second Claimant and/or the staff of the First Claimant not to: (a) work for the First Claimant; and/or (b) provide services to the First Claimant; and/or (c) supply goods to the First Claimant; and/or (d) to stop the First Claimants’ lawful business activities at MBR Acres Ltd, Wyton, Huntingdon PE28 2DT)”

(The Thirty-First Defendants “Persons Unknown” are also alleged to be harassing the employees/officers of Impex)

The use of the first “and/or” in that definition means that this category of Persons Unknown is wider than simply those people who are protesting outside the premises of the First Claimant. As drafted, the definition is capable of catching people who are “protesting against the First Claimant’s… activities” otherwise than outside the Wyton Site. When permission was granted to serve the Claim Form on the Thirty-First Defendant “Persons Unknown” by alternative means, the method that was authorised by the Order of 31 March 2022 was, essentially, by posting copies on the noticeboard opposite the Wyton Site. That method of alternative service, whilst it can reasonably be expected to bring the proceedings to the notice of those who are protesting outside the Wyton Site, it is not likely to bring the Claim Form to the attention of people protesting elsewhere, for example at Impex’s premises or at the homes of any of the employees/officers or the First Claimant and/or Impex. There is a potential failure, therefore, in the alternative service order insofar as it purports to serve the Claim Form on people who fall within the definition of the Thirty-First Defendant, but who are not protesting outside the Wyton Site: see LB Barking & Dagenham [46]-[48].

The case pleaded in the Particulars of Claim

The case advanced against the Thirty-First Defendants “Persons Unknown” is set out in paragraphs 455-463 of the Particulars of Claim. It is alleged that this category of “Persons Unknown” has:

The course of conduct is alleged to be oppressive and unacceptable in that it was “designed and intended to torment and intimidate members of the Second Claimant class including, but not limited to the First Claimant’s staff, in an effort to cause members of the Second Claimant class to terminate their contractual relationships with the First Claimant and/or cease supplying goods and/or services to the First Claimant.”

Each of the acts relied upon against the named Defendants is alleged also to have “included unknown persons who have done, aided, abetted, counselled or procured the acts and who at the time they committed the acts were unknown and unidentified, it being the first time they committed any wrongdoing against the First Claimant’s staff and/or Second Claimants.” The Claimants contend that this is a “feature” of the protests for reasons set out in the Particulars of Claim. These particulars focus on matters which, it is claimed, show that new people come and join the protest.

The Claimants’ evidence

In her witness statements, Ms Pressick has provided the following evidence:

Vandalism of the noticeboard outside the Wyton Site

Sub-paragraph (6) of the variation sought by the Claimants to the injunction relates to damage that has been caused to the noticeboard opposite the Wyton Site. The noticeboard is, in fact, a locked glass fronted cabinet in which a copy of the interim injunction order (and other documents) is displayed. Display of the injunction order outside the Wyton Site was the method of alternative service of the Claim Form for which permission has been granted in respect of the various categories of Persons Unknown Defendants (see [3]-[5] above).

Alleged damage to the noticeboard is not a claim that is presently included in the Particulars of Claim. In her seventeenth witness statement, Ms Pressick says that the noticeboard has been “repeatedly vandalised”, principally by spray painting. Ms Pressick states:

“The vandalism of the noticeboard is especially vexatious as the protestors know that the Claimants must display the Injunction Order on the noticeboard to ensure that Persons Unknown have been effectively served with the Injunction Order. the repeated vandalism of the noticeboard does appear to be an attempt to hinder and evade service of the Injunction Order, or at least mitigate the practical effect of technically effective service.”

She adds:

“I should also mention, and without waiving privilege, that internal discussions are ongoing as to the practicality and effectiveness of potentially placing sign(s) on the Gate and/or perimeter of the Wyton Site which provide a QR code with which the Injunction Order can be accessed online. I understand from the Claimants’ legal representatives that similar signage has been deployed in other recent protestor injunctions such as the Arla Foods Limited injunction and the Just Stop Oil injunction in Thurrock and Essex”

Evidence from the police about the protests

By Order of 30 May 2022, Cambridgeshire Constabulary were directed to provide to the Court a witness statement from the senior officer with current operational responsibility for policing the protest activities against the First Claimant. The information to be provided in the witness statement, together with any further information that the officer considered would assist the Court in its decision as to the interim injunction, was specified in the Order as follows:

“(a)

In relation to the protests at the Wyton Site in the period from 1 April 2021 to date, please provide details of:

i.

the number of people who have been arrested by the police;

ii.

the date on which each person was arrested;

iii.

the offence(s) for which the person was arrested and suspected to have committed;

iv.

the number of people who have been charged;

v.

the offence(s) with which the person was charged; and

vi.

the current status (or, if applicable, result) of any prosecution.

At this stage, the Court does NOT require the names of those who have been arrested and/or charged (and the information should be given a cipher, e.g. A, B, C, D, etc.)…

(b)

In relation to policing of the protests at the Wyton Site since the grant of the interim injunction, first on 20 August 2021, and then the imposition of the exclusion zone on 10 November 2021, has the number of incidents requiring police intervention increased, decreased or stayed about the same when compared to the period prior to the grant of the relevant injunction?

(c)

How often are the police currently attending the Wyton Site in order to police the protests?

(d)

Do the protestors cooperate with the police?

(e)

Are there any particular activities of the protestors that are currently causing concern to the police and in respect of which the police feel that their powers are insufficient or inadequate?”

In response to that Order, Superintendent Robin Sissons has provided a witness statement, dated 10 June 2022. He described himself as the “standing gold commander for the police response to police activities taking place at MBR Acres Ltd, Wyton; Labcorp, Wooley Road, Alconbury and other associated locations across Cambridgeshire”. He was responsible for overseeing the strategic policing response to the protest activities. I should record the Court’s thanks to Superintendent Sissons for providing his witness statement.

By way of introduction, Superintendent Sissons stated:

“5.

MBR (Marshall Bio Resources) Acres, B1090 Wyton is a long-established facility where animals are bred for research purposes, which is a lawful activity. There has been continuous protest activity outside the business premises for a twelve-month period and there is no indication that this will cease in the foreseeable future. A semi-permanent protest camp has been erected along the roadside, with a communal tented kitchen, rented port-a-loo’s and a number of mobile home vehicles that the protesters sleep in.

6.

The protestors tend to protest towards staff arriving and leaving the site at shift changeover times. They hold up animal liberation signs and shout at the staff. At the MBR encampment, the protestor numbers can vary from a handful up to 200 on declared ‘Days of Action’ and consists of a wide variety of people ranging from those who live locally to others that have travelled a great distance and camp; young, old and all different backgrounds of society are represented. The main stated purpose of the protesters is to ensure no animals leave the site and to continue to protest until the business is closed. More recently protest activity has focused on social media pressure focusing on workers and more direct action at the MBR’s supply chain and subcontracted companies that are involved in the animal movement.

7.

My gold strategy covers the requirements needed to provide a co-ordinated and consistent response that meets our core policing responsibilities (Protecting life, property and preventing injury; Maintaining the Queen’s Peace; Preventing crime; Bringing offenders to justice) so that we keep our communities safe and maintain public confidence.

8.

It is the intention of Cambridgeshire Constabulary to work with partners to deliver our core policing responsibilities by ensuring a proportionate and risk-based policing response in line with the Code of Ethics and the force vision and values. We will engage with protestors and staff at MBR Ltd to reach a balanced position whereby protest activity occurs in such a way that it is peaceful whilst ensuring the rights of those engaged in a lawful business are not infringed.”

As requested, the officer has provided a table – set out in the Appendix to this judgment – providing crime data relating to the protests at the Wyton Site, in the period from 1 April 2021. Overall, 23 people had been arrested, 21 had been charged, 4 people had been convicted of offences and 4 people had been found not guilty following trial or in respect of whom the case was dismissed, although there were others in respect of whom criminal prosecutions were pending as at the date of the statement.

The data in the table shows that, since the grant of the original interim injunction, on 20 August 2021, there have been 9 arrests, leading to 7 people being charged. Of those, at the date of Superintendent Sissons’ statement, two people were awaiting trial, one person had been found guilty of an offence under s.4A Public Order Act 1986 and fined £100 and ordered to pay £100 in costs; one person had been found not guilty at trial and another had the charge s/he faced dismissed at court; and no further action was taken in respect of one person who was arrested on suspicion of assault. After the exclusion zone was imposed by the varied interim injunction on 10 November 2021, there have been three arrests, leading to the charge of one person with a single count of criminal damage. That is an arrest rate of 1 person every two months. Those who have been arrested and/or charged have often had bail conditions imposed which prevent the relevant individual from attending the Wyton Site.

As to the impact of the interim injunction and the subsequent addition of the exclusion zone, Superintendent Sissons’ evidence was as follows:

“10.

I have been asked to consider the impact that the interim injunction and the subsequent addition of an exclusion zone has had on protest activity. This is difficult as there are several factors that have influenced protest activity and I would not be able to attribute one factor having more influence than another. The main influencing factors are affected by:

11.

Protester activity - over the past twelve months protest activity has changed dramatically. Initially there was a focus on having a physical presence daily (with the intention of influencing MBR staff members as they entered and exited the site) and large “Demonstration Days” at weekends with organised speeches. If the injunction and exclusion area had been in place during this period, then I would have anticipated that its impact would have been significant.

12

As the winter months/poorer weather conditions developed then physical numbers at the site reduced to only a few being physically present meaning the injunction impact was limited. During this period protest activity seemed to focus more on social media with the intention of influencing the social network of workers and companies involved in MBR’s supply chain. For example, I am aware that the operational premises of a company used for animal movement was identified (situated outside of Cambridgeshire) [Impex] and intensive physical protest activity occurred at that location. Most recently there has been protest activity at the home addresses of MBR staff.

13.

These new developments in protest activity have limited the impact that the injunction and the exclusion zone have had; albeit it is appreciated that there is a possibility that a large physical presence both daily and at special events may occur again in the future.

14

MBR activity – throughout the twelve-month protest, MBR have altered their response to the above changes in protester activity. There have been times when staff have entered and left the site together and the injunction and its exclusion zone has assisted them. Similarly, there have been times (during the winter months) where they entered and left with no protester activity. Finally, it is my observation that there is a corelation between animal movements and periods directly afterwards where protest activity intensifies and at these moments the conditions of the injunction have assisted MBR staff to enter and leave the site whilst still allowing the rights of the protesters to be exercised.

15.

Police activity – the gold strategy articulates that the constabulary will take a balanced position whereby protest activity that occurs in a way that it is peaceful (with some civil disobedience tolerance) is permitted whilst ensuring the rights of those engaged in a lawful business are not infringed.

16.

If substantive offences are committed, then a proportionate policing response will be delivered. The policing style is reasonable to the situation, based on an approach of ‘no surprises’ delivered in a ‘normal policing’ context; whilst remaining impartial and accountable in law. The crime data within the informational table demonstrates this being our approach. It will also show that several offenders have been taken through the criminal justice system during which time restrictions were placed on their movement/ability to attend the site. On some occasions these restrictions have had an impact on protest behaviour of those still at the site.

17.

Similarly, it is clear from conversations that officers have had whilst engaging with protesters and on reading comments on social media sites that promote their ideology, that many of the protesters are aware of the injunction, its restrictions and implications meaning that its existence has had an impact on their behaviour.

18.

The data shows that from 20/12/2019 until 20/08/2021 when the first interim injunction was granted there were a total of 124 incidents recorded plus 30 to other locations which are associated with this issue. From 1 April 2021 – [to] date (05/06/2022) there are a total of 240 incidents recorded that the Police have attended. From 20/08/2021 to the 10/11/2021 when the exclusion zone was imposed there were 51 incidents recorded for MBR Acres location only. Then from the 10/11/2021 to date (05/06/2022) a total of 56 Incidents have been recorded for this period.”

Superintendent Sissons explained the policing response to the protest activities as follows:

Regarding the engagement with and cooperation of the protestors, the officer added:

“It should be emphasised that the protest group are a collection of individuals with their own independent thoughts and ideologies. It consists of a wide variety of people, young, old and all different backgrounds of society are represented. In my briefing to officers, I highlight ‘we should not consider a crowd of protesters as one unit but instead as a group of individuals. Some will want to voice their views only whilst others will be prepared to take further action.’ This is important as some individuals will co-operate fully with police guidance and injunction restrictions whereas other individuals will be less responsive. To emphasise this further I am aware that there are several different protest groups with different memberships that have varying viewpoints from each other. Therefore, whilst generally the group will state that they are a collection of people, there are individuals that will be more argumentative with officers or will want to deviate from what the group has agreed.”

Superintendent Sissons completed his statement with a section headed “Activities where legislative powers are lacking”, in which he stated the following:

“23.

The constabulary has been successful in being able to reach the correct balance of ensuring that protest activity occurs in such a way that it is peaceful whilst ensuring the rights of those engaged in a lawful business are not infringed. The policing style adopted is very much engagement first but if there are substantial criminal offences committed then positive action will be taken. The criminal justice system has a wide variety of offences that can be used by the constabulary and as can be evidenced in the crime data provided, we have used them to full effect when proportionate to do so.

24.

In appreciation that it is not just the constabulary that hold legislative powers, there is a fortnightly multiagency meeting (chaired by the constabulary) where representatives from Cambridgeshire County Council (Highways), District Councils, blue light services and key stakeholders attend. This allows legislative powers beyond the constabulary to be considered in a co-ordinated way. I have not sought their views on whether there are any activities where legislative powers are lacking from their perspective currently.

25.

Finally, I am aware of the use of unmanned aerial vehicles known commonly as drones. These are being used on a regular basis by the protest group to monitor the activities on the MBR site. The constabulary have received complaints regarding their presence and at times the way that they are flown i.e. close to buildings and persons. There is currently no criminal legislative framework that prevents the use of drones (if flown appropriately) to capture images and then circulated on social media. With regards to this, we are seeking advice from the Civil Aviation Authority in appreciation that the constabulary are not the primary legislative guardians in this area.”

Evidence from the relevant named Defendants

Ms Jaffray, the Twentieth Defendant, attended the hearing on 7 October 2022 remotely. She spoke at the hearing and had also provided a witness statement. She responded to the allegations made against her as follows:

By the time of hearing on 7 October 2022, and the narrowing down of the variation application, the Claimants’ submissions were focused on the alleged targeting of the First Claimant’s employees and those of Impex, which the Claimants contend is harassment.

For the Claimants, Ms Bolton submitted that the variations sought to the interim injunction under sub-paragraph (5) are “tailored” to restrain specific harassing conduct that has occurred and is likely to occur in the future. As such, the Claimants contend that such relief is both proportionate and necessary.

As the principal target of the variation application is “Persons Unknown”, few individual named Defendants made any submissions. Those that did mainly questioned whether the Claimants’ evidence justified any order being made and, in particular, whether it justified the extension of any injunction to the named Defendants.

On this point, Ms Bolton submitted that, notwithstanding that the Claimants have no evidence of wrongdoing on the part of many of the named Defendants, they can nevertheless properly apprehend that, were an injunction not granted, these Defendants would nevertheless threaten and intend to commit the relevant acts. During the hearing, I asked Ms Bolton, specifically, why I should grant an injunction, in the terms of sub-paragraph (5), against a named Defendant when, in respect of whom, there was no evidence demonstrating that s/he had committed any of the acts or any credible evidence that s/he threatened to do so in the future. Ms Bolton’s response was that if the injunction does not apply to everyone, those who are not bound by its terms will commit the acts that others are prohibited from doing. In support of her argument, that the Court can and should grant “precautionary relief” on this basis, Ms Bolton relied upon Vastint Leeds BV -v- Persons Unknown [2019] 4 WLR 2 [26]-[31]; and Koninklijke Philips NV -v- Guandong Oppo Mobile Telecommunications Corp Ltd [2022] EWHC 1703 (Pat) [18]-[19], [25]-[36]. She also referred me to two paragraphs of the judgment of HHJ Simon in Thurrock Council -v- Adams [2022] EWHC 1324 (QB):

Based on this, Ms Bolton contended that, unless the Court granted an injunction against the named Defendants in the same terms as was granted against “Persons Unknown”, it would similarly “neuter” the effect of the injunction.

Should the interim injunction be varied to add sub-paragraph (6)?

I will take this proposed variation first, as it is straightforward. I refuse to grant it.

This proposed restriction was something of an afterthought. It was not included in the original application for the variation to the interim injunction. None of the named Defendants is alleged to have carried out these acts. The Particulars of Claim currently include no claim which would support the grant of interim relief. The acts complained of involve, it appears, the commission of the criminal offence of criminal damage. The noticeboard is situated within an area covered by the First Claimant’s CCTV, which means it should be a relatively straightforward matter to identify those who have carried out the alleged damage (even if they cannot immediately be named). If reporting these incidents to the police (and providing them with the necessary CCTV evidence) does not produce a satisfactory outcome, then the Claimants may be able to apply to amend their Claim Form and Particulars of Claim and thereafter to make a targeted application for interim relief against those people who can be shown to have carried out the acts of spray-painting or other damage (even if such people cannot be named and have to be identified by a cipher – like the Twenty-Fifth Defendant). Any claim against such a person will require the Claimants to make an application for an order for alternative service of the Claim Form which, in turn, will require the Claimants to provide satisfactory evidence that the proposed method of alternative service can reasonably be expected to bring the proceedings to the attention of the relevant defendant(s). Until those steps are taken, the Court is not able to consider an application for interim relief.

Should the interim injunction be modified to add sub-paragraph (5) against the named Defendants?

In my judgment it should not.

The variation to the interim injunction order sought by the Claimants, if granted, is likely to affect the exercise of the Convention rights to freedom of expression and the right to protest. As such, s.12 Human Rights Act 1998 is engaged. Therefore, the Claimants must demonstrate that they are likely to succeed in obtaining an injunction in these terms after a trial: see discussion in the Injunction Judgment [80]-[85].

As Ms Bolton accepted, at the hearing on 7 October 2022, Ms Pressick’s evidence in support of the variation application makes allegations and contains evidence against only five named Defendants. In summary of the detail which is set out above, that evidence amounts to the following (with references to paragraphs in the judgment above):

In my judgment, the evidence of alleged wrongdoing against these five Defendants does not justify the grant of the variation to the interim injunction sought by the Claimants.

First, the evidence falls a long way short of demonstrating past wrongdoing of sufficient seriousness sufficient to justify an injunction. The events are generally isolated, and the conduct complained of varied. I do not attach any weight to the allegations of online posting by these Defendants. None of these posts, either individually or collectively, is sufficient credibly to sustain a claim in harassment with a real prospect of success. Reflecting the need properly to accommodate the width of the right of freedom of expression, the threshold for speech-based harassment is a high one: Hayden -v- Dickenson [2020] EWHC 3291 (QB) [44]; Scottow -v- CPS [2021] 1 WLR 1828 [24]. The Claimants are therefore not likely to succeed with a harassment claim on this basis. In respect of the specific Defendants:

There is no evidence against any other named Defendant upon which the Claimants contend, or the Court could conclude, that the relevant Defendant had, in the past, committed any of the acts sought to be prohibited by sub-paragraphs (5) and (6) of the variation application, or credibly threaten to do so in the future.

I do not accept Ms Bolton’s submission that the flexibility of “precautionary relief” permits the Court to grant injunctions against people in respect of whom the Court is not satisfied that the evidential threshold of actual or threatened wrongdoing has been met. The authorities she has cited do not support such a proposition. To be clear: there is no evidence against the majority of the named Defendants that they have done, or credibly threaten to do, any of the acts that are sought to be restrained by the variation application. Analysed applying the well-established rules as to the grant of interim injunctions, the Claimants have simply failed to demonstrate that there is a serious issue to be tried in respect of the allegations made against these named Defendants.

Further, the logical extension of the Claimants’ argument is that it is unnecessary to look at what any individual defendant has done (or threatens to do) and that the Court should instead concentrate on evidence of general wrongdoing by other unidentified individuals. Such a course so obviously carries with it the risk of serious injustice that it must be rejected. I do not read HHJ Simon’s judgment in the Thurrock Council case (paragraph [53]) as endorsing such an approach in respect of identified defendants, but insofar as his remarks might be thought to do so, I would respectfully disagree. In a protest case, adoption of an approach that aggregated the behaviour of a group of protestors, and calibrated the Court’s response based on the worst behaviour that could be proved against some of them, would risk contravening the principle that an individual protestor does not lose the right to freedom of peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual in question remains peaceful in his or her own intentions or behaviour: see Canada Goose -v- Persons Unknown [2020] 1 WLR 417 [99(viii)].

The Claimants have chosen to bring a claim against the named Defendants in these proceedings. Each named Defendant is entitled to a fair adjudication of the claim made, and evidence presented, against him/her, including in respect of any claim for interim remedies, irrespective of the claim made against “Persons Unknown”. The submission that, in order not to “neuter” the effectiveness of a “Persons Unknown” injunction, the same terms must be applied to identified defendants (irrespective of the evidence against those defendants) comes perilously close to a justification for a grant of a contra mundum order; an order prohibiting certain conduct generally, whoever does it. Whether a contra mundum injunction could be granted on the facts of this case is an issue not without controversy. I have previously expressed the view that the circumstances in which contra mundum injunctions can be granted is very limited: see LB Barking & Dagenham [224]-[238]. But the simple point is that the Claimants have never sought a contra mundum order. As such, the Court must apply the principles that govern ordinary inter partes litigation.

Even had I been satisfied that the Claimants’ evidence demonstrated that they were likely to succeed at trial in demonstrating that some restriction was justified, I would have refused to grant a variation to the injunction in the terms sought by the Claimants.

Should the interim injunction be modified to add sub-paragraph (5) against “Persons Unknown”?

In my judgment it should not.

First, I am not satisfied that the Claimants have established the Court’s jurisdiction over the Thirty-First Defendants “Persons Unknown”, by obtaining an alternative service order that can reasonably be expected to bring the proceedings to the attention of all of those of the category of the “Persons Unknown” who are engaged in the alleged harassment of the First Claimant’s staff and/or Impex staff. Once the link is broken between the Wyton Site and the activities sought to be restrained, the method of alternative service – by posting a copy of the injunction order outside the Wyton Site – is insufficient. As I made clear in LB Barking & Dagenham [47], the greater the width of the category of Persons Unknown, the more difficult it will be to satisfy the requirements for an alternative service order.

I accept that there may be some people who have been protesting at the Impex Site who have previously protested at the Wyton Site, but it does not follow that all of those who are protesting at Impex have previously protested at the Wyton Site. The injunction order would catch those who had no previous connection with the Wyton Site. If the injunction is going to include protest activities at the Impex site, then, at the very least, the method for alternative service must provide a means of bringing the proceedings to the attention of people who are protesting at the Impex site. The current alternative service order does not do so. It is focused only on activities at the Wyton Site.

Second, the evidence relied upon by the Claimants does not disclose acts of a level of seriousness that would have justified the grant of an injunction against “Persons Unknown”. Apart from two incidents of trespass at the Impex site, the evidence largely consists of non-specific (and apparently lawful) protest activities at the Impex site. At its highest, the evidence discloses that there have been efforts to target protest activities towards the Managing Director of Impex. It is very difficult, from the Claimants’ evidence, to decide which of the alleged incidents might have crossed the line between legitimate protest and harassment. It is clear that the police have been involved, and that they have made arrests. The Claimants have not, apparently, sought information from the police to identify those who have been arrested and what they are alleged to have done. That seems to me to be a basic step that ought to be adopted to ensure that any injunction granted by a civil court is properly targeted at people against whom there is credible evidence of past wrongdoing and/or the threat of future wrongdoing.

Discretion

Finally, I would in any event have refused to grant the variation to the interim injunction sought by the Claimants, whether against the named Defendants or “Persons Unknown” as an exercise of discretion.

First, in respect of the variation of the injunction against “Persons Unknown”, moving the focus of the injunction to restrict activities directed towards Impex raises difficult issues. As I have set out already, I am not satisfied that the Claimants have established jurisdiction over those in the category of the Thirty First Defendant “Persons Unknown” in respect of activities against Impex. I am not satisfied that the Claimants have, by service of a Claim Form on the relevant category of Persons Unknown, sufficiently established the Court’s jurisdiction over all of those who would have been subject to the Court’s injunction. The Claimants are not (ostensibly) seeking a contra mundum injunction. The issues I have identified are some of the practical limits of bringing civil claims against “Persons Unknown”.

Second, unless the Claimants can demonstrate a clear case for an injunction, in my judgment it is better to leave any alleged wrongdoing to be dealt with by the police. Officers on the ground are much better placed to make the difficult decisions as to the balancing of the competing rights (see Injunction Judgment [85] and [96]).

The evidence from Superintendent Sissons shows that this is precisely what the police are doing. There is no complaint from the Claimants that the police are failing in their duties or that the targeted measures taken by the police have been ineffective. Arrests are being made of some protestors, including it appears those engaged on protests at Impex, and several people have been charged. Appropriate use of bail conditions or, upon conviction, restraining orders will restrict further unlawful acts of individuals more effectively and on a targeted basis.

Arrests for offences under s.14 Public Order Act 1986 suggest that the police have already utilised their powers to impose conditions on public assemblies. I appreciate that the Claimants contend that, notwithstanding the efforts of the police, some people are continuing to break the law. The issue for the Claimants is that, before meaningful relief can be granted by way of civil injunction, it is necessary to identify the alleged wrongdoers so that they can be joined to the proceedings.

Third, an injunction in the terms of sub-paragraph (5) is ambitious. Effectively it is a claim for an injunction made by the First Claimant, in order to protect Impex from acts of alleged harassment. I accept that, under the Protection from Harassment Act 1997, the First Claimant may be able to establish a legal basis on which to make that claim, but it does not follow that the Court will consider it just and convenient to grant an order in those circumstances. Fundamentally, I consider that the better course, for several reasons, is for Impex to apply itself for an injunction if it wants to seek relief in respect of acts of alleged harassment (whether by named Defendant or “Persons Unknown”).

For these reasons, the Claimants’ application to vary the interim injunction to add sub-paragraphs (5) and (6) is refused.

A point that arose at the hearing on 7 October 2022 was whether Ms McGivern is now a defendant to the proceedings.

The Claimants brought a contempt application against Ms McGivern. I dismissed it after a 2-day hearing on 22 July 2022. The judgment giving my reasons for dismissing the contempt application was handed down on 2 August 2022 ([2022] EWHC 2072 (QB)) (“the Contempt Judgment”).

I raised the status of Ms McGivern at the hearing on 7 October 2022. As part of their Contempt Application, the Claimants had contended that, by operation of the Gammell principle, Ms McGivern had become bound by the interim injunction order because she had done acts that brought her within the category of “Persons Unknown” (see [64]-[66] Contempt Judgment). I had asked, at the hearing of the Contempt Application, whether the Claimants intended to bring a claim against Ms McGivern but was not given an answer (see [71] Contempt Judgment). At the hearing of 7 October 2022, I made clear that if Ms McGivern was a defendant to the claim – by operation of the Gammell principle – then the Claimants had a choice. Either they had to pursue a claim against her – which would mean applying further to amend their Particulars of Claim to set out the claim against her – or they had to discontinue the claim against her.

Ms Bolton argued that Ms McGivern has not become a defendant to the claim on two bases. First, she contended that the Gammell principle operates only to make Ms McGivern liable to comply with the interim injunction, it does not make her a defendant. It would be for the Claimants to make an application to join her as a defendant and they have not made such an application. Second, in the Contempt Judgment, I found that the Claimants had failed to comply with the terms of the alternative service order and so Ms McGivern did not have notice of the injunction order: see [78] Contempt Judgment.

I reject Ms Bolton’s first submission. The operation of the Gammell principle means that – providing there has been compliance with the terms of the alternative service order – a person who does an act that brings him/her within the definition of a “Persons Unknown” defendant in civil proceedings becomes a defendant to those proceedings. No further step is required: see South Cambridgeshire DC -v- Gammell [2006] 1 WLR 658 [32]. As I noted in the Contempt Judgment [71]:

“Whilst it is correct that, in Gammell, Sir Anthony Clarke MR stated that it was not ‘necessary’ to join such a person to the proceedings, that was because by her actions, she had already become one.”

Although there has been a large increase in the number of “Persons Unknown” injunctions that have been granted by the Courts in recent years, few claims have ever progressed to a trial. In consequence, the Court has not yet grappled with these issues, whether at first instance or at appellate level. In this case, Ms Pressick’s evidence contains very many examples of unknown individuals who are alleged to have done acts that would place them within one or more of the categories of “Persons Unknown” Defendants to this claim. If that evidence is accepted, by operation of the Gammell principle, all these individuals have now become defendants to the claim, even if they are presently unidentified. In ordinary civil litigation, a defendant to a claim would be required to file an Acknowledgement of Service and, if s/he was intending to defend the claim, a Defence. But the alternative service orders that the Claimants sought and obtained deems the Claim Form served 14 days after the relevant documents are displayed at the Wyton Site. In the vast majority of the “Persons Unknown” Defendants, this deemed service is simply a fiction. But the more serious consequence is that, as a result of operation of the Gammell principle and the deemed service of the Claim Form, a large number of people will have become defendants to the proceedings, but against whom no claim is advanced in the Particulars of Claim. How will such a claim be resolved? On one view, as the Claimants have brought the claim, if they fail to prove it against any individual defendant at trial, then the claim against that defendant would be dismissed. Ultimately, I suppose, these will be matters that will have to be resolved at the trial of the action.

Although I have rejected Ms Bolton’s first point, her second is correct. The result of the decision in the Contempt Application is that the Court has found that the Claimants had failed to comply with the terms of the alternative service order and, consequently, Ms McGivern was not given notice of the interim injunction order or the Claim Form. As such, although Ms McGivern did do acts that brought her within the definition of at least one of the categories of “Persons Unknown” Defendants, she has not become a defendant because she has not been served with the Claim Form.

The ramifications of this finding may go beyond Ms McGivern. In order to pursue a claim against “Persons Unknown”, unless exceptionally the Court dispenses with the requirement (CPR 6.16), the claimant must serve the Claim Form. For a claim against “Persons Unknown” defendants, that will require permission for alternative service of the Claim Form (CPR 6.15) and compliance with the terms of any order granting permission. If the Claimants have failed to comply with the alternative service order, then they will have failed to establish the Court’s jurisdiction over the relevant defendants. The Claimants may need to consider what steps they might now take to remedy any failure to comply with the alternative service order in respect of the Persons Unknown Defendants.