Stone & Anor v WXY (Person Or Persons Unknown)

On 30 October 2012, I heard an application made by Mr Sherborne on behalf of the Claimants that Mr Jani Jance, who is a freelance photographer, should be joined in their existing proceedings (Claim No HQ10X01847) as a defendant. Those proceedings were launched in May 2010 with the primary objective of preventing harassment of the Claimants at around the time of their wedding, due to take place on 16 May of that year, although the only Defendant(s) who could be made the subject of a claim at that time had to be characterised as “WXY” (a person or persons unknown responsible for pursuing and/or taking photographs of the Claimants outside their home and in other places during March to May 2010). At that stage, and apparently for some time thereafter, the Claimants were unable to identify any of the paparazzi by whom it was alleged they were then being pursued.

It is now known that Mr Jance had at least a limited role at that time. He admits that he attended on the instructions of his agency on one occasion, on 13 May 2010, when he took two or three photographs of the Claimants. According to his evidence, however, they were not of sufficient quality or interest for him to be able to make any use of them. He does not accept, on the other hand, that he has either then or subsequently harassed the Claimants or done anything otherwise illegal.

I made an interim order against WXY on 14 May 2010 to give the Claimants some measure of protection during the period when there was particular media interest in them. The Claimants were at least able to serve the order on some of the well known paparazzi agencies and, thereafter, either because of the order itself or because interest in the couple may have tailed off to some extent, it seemed that the harassment which troubled them at that time largely abated.

It is recognised, in general terms, that it is inappropriate for a claimant to seek interim relief and then to sit back and take no further step in the proceedings in question, treating the interim injunction as affording the same benefits as a permanent order. It is fair to acknowledge, however, that where the offenders are “persons unknown” it will be very often impossible to make much progress in the litigation because there is no one available against whom to pursue the claim by serving particulars of claim. While it is true that the court can grant an order for what used to be called “substituted service”, there would remain the problem that the “persons unknown” would not engage with the proceedings by way of serving a defence or giving disclosure of documents. It is perhaps not surprising that some claimants decide to incur no further expense, in such circumstances, by way of pursuing an action which can achieve no further benefits.

Since the Claimants were, some time ago, able to identify Mr Jance (the Respondent) as one of the original “pursuers” (as they would put it), what is now sought is to introduce him into the litigation as an individual defendant and then bring the proceedings to a close by way of converting the existing order into a permanent injunction. That course was opposed by Mr Lawson-Cruttenden on Mr Jance’s behalf for a variety of reasons.

At least, it seems to me, I should avoid allowing the Claimants to join any individual as a defendant simply because he is the only person they can identify, on the basis that they wish to use him as a convenient “peg” by means of which they can dispose of the litigation. There must be a substantive reason for doing so. Of course, the Claimants do not accept this as a fair characterisation of what they now hope to achieve. They regard Mr Jance as someone who has committed tortious conduct in the past, by way of harassment, and as someone who may go on doing so in the future unless restrained by permanent injunction. He has provided detailed evidence, giving what purports to be a full and frank account of his interaction with the Claimants over the period which has elapsed since his involvement on 13 May 2010. Not only does he deny having harassed either of the Claimants in the past; he also states that he has no intention of pestering them in the future. He claims that he has no wish to do anything unlawful, although he is no doubt reserving the right to take paparazzi photographs of them in public places in so far as it is lawful to do so. I recognise, of course, that his evidence has not been tested and that I must not take it at face value at this stage.

Mr Sherborne relies upon the provisions of the CPR which govern the joinder of a party as a defendant to existing proceedings and, specifically, those which apply where (as here) the relevant limitation period has not expired.

It is provided in CPR 19.2(2) that it must be shown to be desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or where there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

Mr Sherborne emphasises the use of the word “desirable” and contrasts it with the necessity test applicable where the limitation period has expired. Mr Lawson-Cruttenden, however, disputes even the desirability of joining his client and takes a number of points. Perhaps the most fundamental is the argument that, since the original proceedings progressed no further than the issue of a claim form, there are no statements of case from which to identify any outstanding “matters in dispute”. There being no defence, there is nothing which has so far been put in issue. In those circumstances, he argues, the court cannot be satisfied as to what may or may not be desirable for the purpose of resolving “all the matters in dispute”. That is not mere sophistry, since after such a long delay it is genuinely not easy to identify a live issue calling for the court’s resolution.

The question to be answered is whether it is desirable to join Mr Jance to the existing proceedings as opposed to pursuing him by means of a separate claim. What would be achieved, given that on (at least) the Claimants’ case he already falls within the definition of “WXY”? Are there grounds for him to be sued separately as an individual or is he simply perceived as a convenient vehicle for tidying up the loose ends of the original claim?

It seems clear that Mr Jance should not be introduced into the dormant litigation in the capacity of a scapegoat on to whose shoulders can be loaded responsibility for all the wrongdoing said to have taken place in early 2010 – together with a bill for the costs of the action.

Mr Sherborne argues that this is a simple application which does not call for any close analysis of detail. He submits that Mr Lawson-Cruttenden is, mistakenly, seeking to argue the merits of the case against his client: all that should be left for later. On the other hand, Mr Lawson-Cruttenden is approaching the application rather differently. He is effectively saying that his client should not be vexed with litigation at all if there is no realistic prospect of succeeding against him (a summary judgment test); alternatively, that it should not be permitted if “the game is not worth the candle” (an abuse of process test, adopted by the Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946). I hasten to add that this is my formulation, albeit derived from the thrust of Mr Lawson-Cruttenden’s arguments, as representing their logical conclusion. Of course, if there is a case for him to answer, the question would still remain as to whether it is desirable for this to be grafted on to the dormant claim rather than being resolved in fresh proceedings.

Mr Lawson-Cruttenden makes a series of criticisms of the existing proceedings, some more significant than others. First, the claim form should have been issued under CPR Part 8 (pursuant to CPR 65.28), since it invokes s.3 of the Protection from Harassment Act 1997, whereas it was in fact issued under CPR Part 7. That is clearly a significant irregularity. Also, it should have contained a concise statement of the nature of the claim.

On the other hand, there are omissions from the claim form, such as the First Claimant’s full name and a statement of value in respect of damages, which are no doubt unfortunate but capable of simple correction.

No particulars of claim have been served in accordance with CPR 7.4(1)(b). This means that the proceedings effectively stalled at an early stage. That omission, added to the failure to issue under Part 8, would lead me to ask why Mr Jance should be hitched on to this present action, flawed as it is, rather than being sued afresh in properly constituted proceedings (assuming a claim can be justified against him).

A point is also taken as to the adequacy of the definition attaching to WXY. The proper test is to be found in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633 at [21], per Sir Andrew Morritt V-C:

“The crucial point, as it seems to me, is that the description used must be sufficiently certain as to identify both those who are included and those who are not.”

That formulation has been adopted in numerous subsequent cases. Specifically, here, objection is taken to the inclusion of the words “and in other places”, since it is not only vague but would embrace photographing the Claimants in public places, despite it being made clear on 14 May 2010, and also before me in 2012, that the Claimants are not objecting to photographs in public as such – provided there is no harassment.

Furthermore, the order itself was intended to impose an exclusion zone extending to 100 metres around their homes, but does not identify the prohibited locations (even in a confidential schedule). Also, those addresses are omitted from their witness statements in breach of CPR 32 PD 18.1(2).

As to the reasons for joining Mr Jance, evidence is given by the Second Claimant in his witness statement of 22 October 2012 that he saw a van belonging to him on an occasion between March and May 2010, identified by the registration mark X144 EHE. Yet Mr Jance says that he has only been the registered keeper of that vehicle since 31 March 2011 – a matter which is presumably capable of easy resolution rather than requiring proof at trial.

The Claimants have been aware of Mr Jance’s identity for well over a year. In a letter of 28 June 2011 from Schillings it is said that they had already identified him (at some unspecified point in time) “as being one of the photographers who in the weeks leading up to their wedding, prior to the order being obtained, loitered outside their home on a virtually daily basis for the purpose of trying to take photographs of them”. Reference was made to the Claimants’ instructions to the effect that he had no longer attended once the order was obtained. It would thus appear that he was identified by them from an early stage. In any event, he was served with a copy of my order under cover of that letter in June 2011. It is now accepted on his behalf that he has been directly bound by its terms since then. Moreover, the First Claimant appears to accept in her third witness statement that he has stopped photographing her. Nor has any application been made to commit him for a breach of the order since he was served. (Yet she still says that she sometimes regards his presence as intimidating.)

Against this background, it is not easy to see why it has now become desirable to join him as an individual defendant or what it is hoped to achieve by the revival of the proceedings. What would be the “tangible or legitimate advantage”? Has there been a recent course of conduct? One might have expected some enlightenment from an amended claim form or, at last, some draft particulars of claim. None has been forthcoming. Mr Sherborne explained, however, that he sees little point in serving such a draft prior to joinder.

On Mr Jance’s case, since he only attended on the one occasion prior to the order of 14 May 2010, there would not have been a “course of conduct” within the meaning of s.7 of the 1997 Act. The Claimants have made a general assertion about his presence (for example, in the letter of 28 June 2011, “on a virtually daily basis”), but it has to be set against his evidence that he attended only once (and only took two or three photographs which were of no use). Their case against him for an established tort of harassment at that time would seem, therefore, to be somewhat tenuous.

Has anything happened since the date of the order? The only incident referred to prior to the date when he was served with the order, and after my granting of it on 14 May 2010, relates to what happened on 17 April 2011. On that occasion, it seems that the Claimants were riding their bicycles in Primrose Hill when Mr Jance came across them, by chance (he says), and photographed them from two different spots as they were riding towards him. He does not accept that this was unlawful, or inconsistent with the terms of the order (with which he had not, of course, at that stage been served). Mr Lawson-Cruttenden queries whether this episode occasioned any of the usual consequences of harassment such as, for example, anxiety, alarm or distress.

It appears that copies of these photographs were published in some newspapers shortly afterwards, through an agency called Splash News, and that the Claimants raised a complaint in respect of those photographs with the agents. It would be necessary to explore what became of that complaint and whether it resulted in an agreed disposal. Was there, for example, accord and satisfaction?

Reliance has been placed on more recent encounters, which all occurred this year. On 7 March, as Mr Jance accepts, he photographed the First Claimant, out with her dog, in Primrose Hill Road. On the other hand, he does not accept that he pursued her or that he thereby breached the terms of the order (of which he was by then well aware). Moreover, he rejects the First Claimant’s allegation that he either pursued or photographed her in Steele’s Road. The photograph she exhibits (at “LCS2”) appears to show her by a telephone box in Primrose Hill Road.

The First Claimant also asserted in her second witness statement, of 13 July, that on 23 March this year she “noticed someone in a blue Citroen van” who she thought was Mr Jance taking a picture of her. It is, however, now accepted by her solicitor, Ms Afia, in her third witness statement of 22 October, that he took no photographs of the First Claimant on that occasion.

There was a conversation on 23 May between Mr Jance and the Claimants. Although there is disagreement as to what was actually said, it is common ground that no photographs were taken. It is difficult to extract from this incident anything amounting to harassment or a breach of the order.

A photo shoot apparently took place on 3 July. There is no dispute that Mr Jance was present, although he took no photographs. Again, one struggles to infer any incident of harassment or otherwise unlawful conduct.

Finally, on 21 September, it seems that the First Claimant took photographs of Mr Jance’s car and of one of his associates (a Mr Gyimah) on Regent’s Park Road. She also posted a photograph on her twitter account and captioned it “Scum of the earth # paparazzi”. I do not believe that this incident takes matters any further.

It would not be appropriate for me on the present application to rule that there is no reasonable prospect of the Claimants being able to establish a claim in harassment against Mr Jance. On the other hand, I have not been persuaded that it is positively “desirable” for any reason to have him joined as a separate individual defendant in the existing but dormant proceedings. Accordingly, the application is dismissed.