Canada Goose UK Retail Ltd & Anor v Persons Unknown & Anor (Rev2)

This judgment is divided into the following sections:

Introduction

Canada Goose is an international retail clothing company. The First Claimant is its UK trading arm. On 9 November 2017, it opened a store in London at 244 Regent Street (“the Store”). The Second Claimant is the manager of the Store.

Within the range of items sold by Canada Goose are products – particularly coats – manufactured using animal products including fur and/or down. This has made it a target of protests by those who are opposed to the sale of fur and animal products. From its opening, the Store became a focus of protests outside (and occasionally, inside) the premises.

On 29 November 2017, the Claimants issued a Claim Form (accompanied by Particulars of Claim) against “Persons unknown”, seeking an injunction against them for alleged acts of harassment, trespass and/or nuisance arising from the Protest.

On the same date – 29 November 2017 – the Claimants were granted a without notice interim injunction against “Persons unknown who are protestors against the manufacture and sale of clothing made of or containing animal products and against the sale of such clothing at Canada Goose, 244 Regent Street, London W1B 3BR”. Limited modifications were made to the terms of the injunction following a hearing on 15 December 2017. At that hearing, the Second Defendant was added as a party – at its request. Since it was granted, the interim injunction has been served on over 300 people who have taken part in the protest. None has been made a party to the proceedings or has sought to be joined to the proceedings.

For nearly a year afterwards, the proceedings essentially lay dormant, a stay having been granted in the order of 15 December 2017. The interim injunction has remained in place throughout that period. On 30 November 2018, the Claimants issued an Application Notice seeking summary judgment against the Defendants pursuant to CPR Part 24. That is how the matter came before me. Mr Buckpitt represented the Claimant at the hearing. None of the defendants attended the hearing or was represented.

This case has raised important issues in relation to the grant of interim injunctions against “persons unknown” generally and particularly against those engaged in protests.

In light of the complicated legal issues that have arisen, it is particularly unfortunate that, as is commonplace with actions against “persons unknown”, only the Claimants were represented at the hearing. The Second Defendant was served with the Application Notice, and filed a witness statement indicating that it would not formally oppose the application, but stated that it would be for the Claimants to persuade the Court that it was appropriate to grant the order they sought. That has placed an unusual burden on the Court to ensure that proper regard is paid to the rights of the absent parties which, in this case, include all who fall within the wide definition of “protestor” (see [20(ii)] below).

Several issues arose for consideration during the original hearing, some of which Mr Buckpitt had not had an opportunity fully to consider. To avoid any potential unfairness, I gave him an opportunity to provide further written submissions after the hearing. He did so. Since the hearing, there has been some further delay before I have

The Claim Form and Particulars of Claim

The Claim Form and Particulars of Claim identified the basis on which the Claimants sought injunctions against the Defendants, “persons unknown”. The Defendants were identified as follows:

“… animal rights protestors/activists [who] campaign against the manufacture and/or sale of Animal Products including under the brand “Canada Goose” and campaign against the sale of Animal Products by the First Claimant and seek to persuade members of the public to boycott the Store until the First Claimant ceases the lawful activity of selling Animal Products (‘the Campaign’).”

The acts complained of were described as follows:

“… the Defendants have taken part in and/or counselled and procured various acts of unlawful harassment and/or trespass and or nuisance against the First and/or Second Claimant and the Protected Persons” and were particularised in a Schedule of Incidents.

In a section headed “The Legal Basis of each Claimant’s claim”, the following torts were identified:

In their Particulars of Claim, the Claimants acknowledged the freedom of expression and other rights of the “persons unknown”:

“… whilst it is admitted that the Defendants have a right of freedom of expression and of association and a right to demonstrate against the manufacture and sale of Animal Products it is averred that certain of the conduct complained of (and likely to reoccur) is not permitted and/or necessary for the pursuance of such rights”.

(emphasis added)

The Claimants sought to rely upon Articles 5 (security) and 8 (right to private life and respect for home, which they contend embraces a place of business), and the First Protocol of Article 1 (right to enjoyment of possessions) as justifying the interference with the Defendants’ rights of freedom of expression and assembly/demonstration.

The Claimants contended that:

“… it is incumbent on the Court to seek to give effect to each party’s rights so far as possible and it is averred that an injunction order in the terms sought achieves

Intimidation or annoyance by violence or otherwise.

Destroying or damaging property.

The basis of the claim for an injunction was:

“The Claimants fear that unless restrained… the matters complained of will continue and in particular by reason of the intention to prevent the First Claimant selling Animal Products matters will escalate such that conduct of a similar nature… will occur.”

The interim injunction: 29 November 2017

The Claimants applied, without notice, for an interim injunction to restrain further acts of harassment, trespass and/or nuisance by the “persons unknown”. The application came before Teare J.

The Claimants sought – and obtained – an order under CPR 19.6 (the rule is set out in [117] below) to enable the Second Claimant to act in a representative capacity on behalf of “Protected Persons” (necessarily so for the harassment claim, as the First Claimant could not bring such a claim in its own right – see [50] below). Protected Persons were defined in the Order as:

“(a)

the employees of the First Claimant and the security personnel working at the Store…;

(b)

the Customers of the First Claimant being persons who attend the Store in order to peruse and/or purchase the items for sale…; and

(c)

any person visiting or seeking to visit the Store.”

I would note, here, that the width of categories (b) and (c) of Protected Persons means that there is a large class of further “persons unknown” whose interests are represented by the Second Claimant. Whilst, those in class (a) could be identified (and listed), those in categories (b) and (c) cannot, indeed they are protean. I struggle to see how people in categories (b) and (c), who cannot be identified, and are constantly changing, could be said to have “the same interest” in the claim. Nevertheless, the practical effect of this is that this litigation embraces claims brought by persons who cannot be identified against persons unknown. It might be thought that that was an undesirable state of affairs in any piece of litigation. In a claim in which fundamental human rights are engaged, it forces a level of abstraction and generality that, for the reasons I explain below, makes it practically impossible for the Court to apply the required intense focus on the engaged rights of the parties: In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 [17]; In re Guardian News and Media Ltd [2010] 2 AC 697 [50]-[51]: see discussion in [90]-[99] below. This is not a mechanical exercise to be decided upon the basis of rival generalities: RXG -v- Ministry of Justice [2019] EWHC 2026 (QB) [30]per Sharp P.

The Judge granted the Claimants an interim injunction. It is necessary for me to set out some of its terms.

The terms of the order had the following effects:

The Order recited that the Claimants had provided the following undertakings to the Court:

“(i)

to pay any damages which the Defendants sustain as a result of the Injunction Order and which the court considers the Claimants or any of them should pay; and

(ii)

to effect email service as provided below of the Order the Claim Form and Particulars of Claim and application notice and evidence in support, as soon as is practicable”.

As to service of the “persons unknown”:

I note the following:

Although the Order of Teare J did not expressly state that there had been any consideration of s.12 Human Rights Act 1998 (set out in [65] below), Mr Buckpitt confirmed, and I am satisfied, that the Court was referred to and considered its provisions. The Court will always require to be strictly satisfied that the requirements of s.12 have been observed. Applications for injunctions against “persons unknown” are no exception. In a protestor case, there are many “practicable steps” (s.12(2)(a)) that can be takento notify at least some of the respondents of the application for an injunction. The most obvious expedient being notices informing protestors of the intention to apply for an injunction. Such notices could provide details of the time and place that the application together with details of the order the applicant intends to ask the Court to make.

The Claim Form and Particulars of Claim have been served only in the following ways:

The Claimants served the Order of 29 November 2017 and the Application Notice seeking the injunction and evidence in support by sending them to the two email addresses (see [23(ii)] above). Because of the size of the attachments, Mr Hayes sent the documents using Mimecast. Although he received confirmation that PETA had accessed the documents on 4 December 2017, no similar confirmation of receipt was received in respect of service on contact@surgeactivism.com. There is therefore no evidence confirming that the Claim Form has been served upon, or has come to the attention of, any person falling within the class of persons unknown who are the First Defendants.

The continuation of the interim injunction: 15 December 2017

Teare J directed a further hearing of the Claimants’ Application for an interim injunction on 13 December 2017. On 30 November 2017, the Claimants issued an Application Notice seeking the continuation of Teare J’s order. In a witness statement dated 12 December 2017, the Second Claimant set out what had happened since the grant of the interim injunction (and exhibited video footage of some protests – which I have watched). He suggested that continuation of the restrictions imposed by the injunction would be “fair and balanced” and allowed persons unknown “to protest and get their message across without causing significant disturbance and harassment to the Claimants, their staff, customers and members of the public”.

The Application came before HHJ Moloney QC (sitting as a High Court Judge) on 13 December 2017. The day before, the Second Defendant had issued an application seeking (a) to be joined to the proceedings on behalf of itself and “its employees and members”, and (b) a variation of the interim injunction.

PETA’s Application was supported by a witness statement from Mimi Bekhechi, the Director of International Programmes for PETA. She stated that PETA had over 1.2 million members and supporters and operated as a charitable company limited by guarantee. She described the work of PETA as follows:

“PETA is dedicated to establishing and protecting the rights of all animals, focusing on the four areas in which the largest numbers of animals suffer the most intensely for the longest periods of time: in the food industry, in the clothing trade, in laboratories, and in the entertainment industry… PETA has for the last 21 years carried out lawful, peaceful demonstrations against corporations or institutions whose practices cause animals to suffer. These demonstrations have been instrumental in achieving ground-breaking changes for animals, from the ban on cosmetics testing and fox hunting, to ending the sale of foie gras in all major British supermarkets. The importance of preserving our right to public demonstration can’t be overstated…”

She gave particular examples of successes that PETA believed had come about as a result of public demonstrations.

Ms Bekhechi stated PETA’s approach to demonstrations, and in particular, with reference to the actions of certain protestors outside the Store:

“While we are aware that many other people and organisations also feel passionately about ending the suffering inflicted on coyotes and geese for Canada Goose’s fur trimmed, down filled coats, and regularly demonstrate outside the European flagship shop on Regent Street, PETA has no direct involvement with, or control over their actions. PETA has always been and remains committed to achieving its aims by wholly lawful and peaceful means. Not only is this a moral and ethical position taken by the organisation, but we also have many high profile and influential supporters who may well be alienated if PETA were to involve itself in violent or disorderly forms of protest. It is for those reasons that PETA expects the highest standards of behaviour from any persons working for, or representing, the organisation or taking part in a PETA demonstration.”

PETA sought the variation of Teare J’s order on the grounds, explained by Ms Bekhechi, that “the Exclusion Zones contained in the Court’s order prevent PETA from being able to adequately organise in sufficient numbers at the locations of our choosing to inform shoppers… about the cruelty that is involved in the production of Canada Goose’s coats.” In particular, the limit on numbers permitted within the Exclusion Zones, meant that PETA demonstrators who arrived at the Store and found that 8 other protestors were already within the Exclusion Zones, were required to locate themselves either near or even in the carriageway, in areas that might obstruct the free flow of pedestrian traffic or in the vicinity of other retail outlets “thus causing confusion in the delivery of PETA’s message and also unfairly associating those stores with the fur trade and animal cruelty”.

PETA also filed a witness statement from Teodora Zglimbea. She was PETA’s Outreach Coordinator and, as part of that role, she arranged various demonstrations. Ms Zglimbea stated that PETA maintained good relations with the Metropolitan Police:

“PETA demonstrations are carefully and professionally conceived, organised and conducted, including very often notifying the Metropolitan police of the date, time and location of our demonstrations so they can arrange any presence they feel is necessary and to provide a productive dialogue and relationship with the Metropolitan Police. As such, PETA have a long standing and good working relationship with the Metropolitan Police, who are always supportive of us exercising our free speech during demonstrations. At no time during my three years with PETA has any PETA employee or authorised volunteer or activist participating in any PETA-sponsored demonstration which I planned, coordinated and/or attended been arrested or acted in any way contrary to the law, and all such personnel have at all times followed the directions of the Metropolitan Police when present at our demonstrations.

It is PETA’s standard operating procedure that all PETA staff members and volunteer activists participating in a PETA-sponsored demonstration are instructed to dress appropriately (including wearing a PETA logo t-shirt if requested), to act respectfully toward all members of the public they encounter throughout the demonstration, follow the instructions of the designated PETA staff member responsible for conducting the demonstration and follow the instructions of any police officers present.”

Ms Zglimbea gave details of four PETA-organised demonstrations at the Store that had taken place:

Ms Zglimbea confirmed that, apart from those 4 demonstrations, none of the other events complained about by the Claimants related to any PETA-sponsored or PETAorganised activities. She stated:

“… at no time in any of the four demonstrations described above, or generally, has PETA engaged in unlawful or disorderly activities… [T]here is no need to restrict its activities to the extent set out in the terms of the injunction order.”

At the hearing on 13 December 2017, the Judge joined the Second Defendant to the action and permitted it to represent “its employees and members” under CPR 19.6, but adjourned the Claimants’ application for a continuation of the interim injunction to 15 December 2017. The Order joining the Second Defendant to the proceedings did not contain any directions as to service of the Claim Form on the Second Defendant (e.g. requiring service by a particular date or dispensing with service) and nor did it contain any directions requiring the Second Defendant to file a defence or acknowledgement of service.

The Claimants responded to PETA’s evidence in a witness statement dated 14 December 2017 from Geoff Marr, the First Claimant’s “Director in Legal”, based in Toronto. He stated:

Mr Marr did however identify an issue to which I will return. He complained that “it is not understood how an order can be made in respect of general protests that differentiates between the 2^nd Defendant and other protestors…” He confirmed that the Claimants were prepared to agree to some variation of the order which allowed for coordinated protests by PETA “from time to time”. More generally, Mr Marr indicated that the Claimants would “not oppose” a limited variation in the injunction order to permit a demonstration by 15 people, once a week for 2 hours, between 8am to 4pm, Monday to Friday.

The matter came back before HHJ Moloney QC on 15 December 2017. At the hearing, Mr Buckpitt represented the Claimants and Andrew Locke represented PETA. PETA sought the variation of the injunction order to modify the Exclusion Zones, alternatively for permission to hold “controlled demonstrations” in those zones on notice to the Claimants. PETA also raised an issue as to the use of loudhailers.

The Judge gave an ex tempore judgment ([2017] EWHC 3735 (QB)). In summary:

The Judge, given his experience in the area, was clearly alive to the protestors’ rights of freedom of expression and freedom of association. He said [7]:

“All the restrictions I am invited to consider granting or lifting have the effect, to a greater or lesser extent, of limiting the right of the protestors to free expression under Article 10 of the European Convention on Human Rights and indeed of free assembly under Article 11 of that Convention… So far as the Protection from Harassment Act is concerned, the acts I am asked to restrain or permit are acts which are capable of constituting or contributing to harassment of the customers and staff of [the] claimant company. The restrictions are intended to minimise the opportunity for harassment or the temptation for harassment. But under that Act, those acts, if carried out as part of a principled demonstration would arguably be defensible as reasonable. In other words, under the Protection from Harassment Act not every act of harassment is actionable; it depends ultimately on reasonableness, and I have no doubt that acts otherwise of a harassing nature carried out in the course of lawful demonstration might, depending on the nature and extent of their severity, be entitled to that defence.”

An order reflecting the Judge’s variations to the injunction was drawn up and sealed (“the 15 December 2017 Order”). It remained in force, “unless varied or discharged by further order of the court”.

In terms of case management directions, the 15 December 2017 Order also provided:

Further steps in the claim

The 15 December 2017 Order effectively stayed the proceedings until such time as a “named party” re-activated them, subject to the ‘long-stop’ requirement that the Claimants were to issue an application for summary judgment/directions. I am not sure who it was envisaged would qualify as a “named party”. As the proceedings stood at the date of the 15 December 2017 Order, the only named parties were the Claimants and the Second Defendant.

The definitions included in the 15 December 2017 Order (like the Teare J order before that), provided that, in the order:

“‘Defendant’ or ‘Defendants’ shall mean the parties referred to in the heading to this Order including (for the avoidance of doubt) any Protestor or Protestors… [as defined – see [20(ii)] above]”

It appears to me unclear whether the 15 December 2017 Order permitted someone served with the order to request the lifting of the stay. On one reading, it did not. The point may not matter, as, in the event, no party (or third party) did seek to lift the stay and so the proceedings lay in their dormant state. That is not to say that there were no important developments. The injunction contained in the 15 December 2017 Order remained in full force and the Claimants took full advantage of the opportunity to serve it on over 300 “protestors” whenever they judged it appropriate. Anyone so served was thereafter bound by the terms of the injunction, albeit s/he was given the opportunity to apply to the Court to vary or discharge it.

In a witness statement in support of the application for summary judgment, the Claimant’s solicitor, Mr Paul Hayes stated:

“None of the defendants in this matter have filed a defence or acknowledged service of the proceedings. As regards the First Defendants this is certainly the case (and such Defendants are ‘added’ every time a copy of the Order is served on them). The Second Defendant applied to be joined as a party to the proceedings, which application was not opposed by the Claimants. The second Defendant has not served a defence and their challenge in the main related to the terms of the Order rather than the making of an injunction…”

At the hearing of the Claimants’ Application and in response to my questions, Mr Buckpitt gave me information about the number of people who had been served with the injunction and how many of them had been identified by the Claimants. Following the hearing, this evidence has been set out in a further witness statement from Mr Hayes. The evidence is:

Protection from Harassment Act 1997

A significant, if not the principal, basis on which the Claimants bring this claim is alleged harassment by the protestors of the protean class of “Protected Persons” (as defined in the injunction - see [18]). A central issue is therefore what restrictions can be imposed by way of civil injunction to restrain actual or threatened harassment. The key provisions of the PfHA that have a bearing in this case are as follows:

Interpretation of this group of sections.

This section applies for the interpretation of sections 1 to 5A.

References to harassing a person include alarming the person or causing the person distress.

A “course of conduct” must involve—

“Conduct” includes speech.

References to a person, in the context of the harassment of a person, are references to a person who is an individual.

A corporate entity is not a “person” capable of being harassed under the Act: s.7(5) and Daiichi UK Ltd -v- Stop Huntingdon Animal Cruelty [2004] 1 WLR 1503. However, a company may sue in a representative capacity on behalf of employees of the company if that is the most convenient and expeditious way of enabling the court to protect their interests: Emerson Developments Ltd -v- Avery [2004] EWHC 194 (QB) [2].

What amounts to harassment is far from straightforward: see the discussion in Hourani -v- Thomson [2017] EWHC 432 (QB) [138]-[146] per Warby J:

Injunctions under the PfHA have been made in several cases against protestors. However, the Act was not intended by Parliament to be used to clamp down on the discussion of matters of public interest or upon the rights of political protest and public demonstration: Huntingdon Life Sciences Ltd -v- Curtin, The Times, 11 December 1997, per Eady J.

When Article 10 is engaged then the Court must apply an intense focus on the relevant competing rights (see [99] below). Harassment by speech cases are usually highly fact- and context-specific. For example, in Merlin Entertainments LPC & Others –v- Cave [2014] EWHC 3036 (QB) Elizabeth Laing J noted:

The megaphone example demonstrates the importance of context. It was potentially harassment because of the element of pursuit. Yet, “if the respondent used a megaphone to broadcast his remarks in a town square 200 miles away from the applicant, it is hard to see how that conduct would bear the description 'harassment' (in the ordinary sense of that word)”: Khan (formerly JMO) -v- Khan (formerly KTA) [2018] EWHC 241(QB) [69]. This is just one of the issues that makes defining the terms of any injunction to restrain alleged harassment particularly difficult.

Fundamental principles of civil litigation

Civil Litigation in England & Wales is adversarial.

“English civil courts act inpersonam. They adjudicate disputes between the parties to an action and make orders against those parties only. This is true even in proceedings … against ‘persons unknown’. They become parties. What is not permissible is to make an order against a stranger to the action.”

A-G -v- Newspaper Publishing Plc [1988] Ch 333, 369Cper Sir John Donaldson MR.

A claimant can bring a claim against a defendant alleging that s/he has committed some wrong. The defendant can admit the claim, in whole or in part, or s/he can deny the claim (or challenge the Court’s jurisdiction). Absent an earlier summary determination, or default by one of the parties, any dispute between the parties will be adjudicated upon at a trial at which the Court will consider evidence presented by each party. If the Court finds for the claimant, it will usually enter judgment for the claimant against the defendant and grant the remedies to which it considers the claimant is entitled consequent on the judgment. Subject to any appeal, that brings the litigation to an end.

The Court will consider claims based on the commission of wrongs in the past, and those based on the claimant’s contention that the defendant threatens to commit a wrong against him/her in the future. Where justified, and where the claimant has demonstrated, by evidence, a credible threat that the defendant will act wrongfully unless restrained, the Court has the power to grant an injunction to prevent a defendant from doing the act which the claimant contends would be a civil wrong. The purpose of an interim injunction is usually to protect the position pending the court’s final assessment of evidence at a trial. The Court will not normally grant an interim injunction if it considers that the claimant could be adequately compensated in damages if the defendant did commit a civil wrong. Fundamentally, however, the Court will only grant an injunction where it is satisfied that the claimant has a substantive cause of action against the defendant that gives rise to a serious issue to be tried. More onerous requirements may apply in some types of case (e.g. defamation claims and/or those that engage s.12 Human Rights Act 1998).

The Civil Procedure Rules provide a comprehensive framework for the commencement of claims and the service of originating process upon defendants. In broad terms, the object is to seek to ensure that defendants to civil claims are given proper notice of the claim that is being made against them and a reasonable opportunity to put forward any defence to the claim. The fact that the Court, exceptionally, permits a claim to be brought against “persons unknown” (see further [59(v)-(xiv)] below) does not lead to the abandonment of this basic principle. There may be practical difficulties in achieving the objective where the identity of the defendant is not presently known, but it does not lessen the obligation to attempt to do so. Even people who shield themselves behind anonymity are to be afforded the basic right, so far as possible, to be given notice that a claim is being made against them and an opportunity to defend themselves.

These fundamental principles were clearly articulated in Lord Sumption’s judgment in Cameron [9]-[26], the first case in which the House of Lords or Supreme Court have considered proceedings against “persons unknown”. In summary:

The following provisions of the CPR seek to achieve these objectives:

The CPR imposes time limits – separate from any period of limitation – on the bringing of a claim.

Interim injunctions

Interim injunctions to restrain the threatened commission of a civil wrong are still known by the Latin as quia timet injunctions.

In IslingtonLondon Borough Council -v- Elliott [2012] EWCA Civ 56 [31], Patten LJ identified the governing principles, including:

s.12 Human Rights Act 1998

When considering whether to grant an interim injunction, the Court will usually apply the well-established test from American Cyanamid -v- Ethicon Ltd (No.1) [1975] AC 396:(a) is there a serious issue to be tried? (b) would damages be an adequate remedy? (c) does the balance of convenience favour the grant of an injunction?

A more exacting test is required in certain types of case. Where the injunction sought may interfere with freedom of expression, the test is not that under American Cyanamidbut that provided in s.12(3) Human Rights Act 1998. s.12 provides:

“Likely” in s.12(3) means “more likely than not”: Cream Holdings Ltd -v- Banerjee [2005] 1 AC 253. Warby J summarised the position for the Court at the interim stage in YXB -v- TNO [2015] EWHC 826 (QB) [9]:

“The test that has to be satisfied by the claimant on any application for an injunction to restrain the exercise of free speech before trial is that he is ‘likely to establish that publication should not be allowed’: [s.12(3)]. This normally means that success at trial must be shown to be more likely than not: Cream Holdings … In some cases it may be just to grant an injunction where the prospects of success fall short of this standard; for instance, if the damage that might be caused is particularly severe, the court will be justified in granting an injunction if the prospects of success are sufficiently favourable to justify an order in the particular circumstances of the case: see Cream at [19], [22]. But ordinarily a claimant must show that he will probably succeed at trial, and the court will have to form a provisional view of the merits on the evidence available to it at the time of the interim application.”

“Publication” in s.12(3) is not restricted to commercial publication; it applies to any method of communication that would engage Article 10: Birmingham City Council -v- Afsar [2019] EWHC 1560 [60]-[61] per Warby J.

“In the law of defamation, ‘publication does not mean commercial publication, but communication to a reader or hearer other than the claimant’: Lachaux -v- Independent Print Ltd [2019] 3 WLR 18 [18] (Lord Sumption). This is generally true of the torts associated with the communication of information, sometimes known as ‘publication torts’, and the related law (see the discussion in Aitken -v- DPP[2016] 1 WLR 297 [41]-[62]). Parliament must be taken to have legislated against this well-established background. Section 12(3) applies to any application for prior restraint of any form of communication that falls within Article 10 of the Convention... [T]here can be no doubt as to the materiality of s.12(3) in this case. It contains a statutory prohibition on the grant of a pre-trial injunction which interferes with freedom of expression, unless the Court is satisfied that the claimant is likely to obtain a final injunction…”

Persons unknown: the need for precision in the terms of any injunction and that its terms only restrain wrongdoing

The Court of Appeal’s decision in Ineos considered the application of two important principles when applications are made for interim injunctions against persons unknown: (1) the need for precision in the terms of any order; and (2) the need to ensure that the order restrains only unlawful conduct.

If a claimant cannot define the relief sought with a sufficient degree of precision (e.g.

A civil wrong can be committed (or threatened) by one or more people whose identity is not known to the putative claimant. The Court will not lightly allow justice and the rule of law to be thwarted by the inability immediately to identify the wrongdoer. But it is axiomatic that the Court requires evidence (to the required standard) that the person, against whom an injunction is sought, has done (or is threatening to do) something unlawful, and that the terms of any injunction will restrain only conduct which is unlawful. If these requirements are not met, the injunction will usually be refused. Consistent with the principles identified in Elliott (see [63] above) the Court does not grant injunctions ‘to be on the safe side’.

Ineos was a claim against demonstrators. The claimants were 10 companies who were involved in fracking in the UK. They obtained injunctions, without notice, against “persons unknown” who were (or were expected to become) protesters at various fracking sites. The injunctions were granted to prevent various acts, including trespass and criminal damage. At first instance, Morgan J had declined to order injunctions based on apprehended harassment under the Protection from Harassment Act 1997, “largely because of the lack of clarity of that term for the purposes of being included in an injunction”: Ineos [102].

Two named defendants, who had been joined to the proceedings in order to challenge the injunctions, appealed to the Court of Appeal contending that, at first instance, the Court had failed adequately (or at all) to apply s.12(3) Human Rights Act 1998 (the terms of which are set out in [65] above).

The various defendants (or categories of defendant) in Ineos were identified as follows:

The Court of Appeal allowed the appeal, discharged the injunctions against the third and fifth defendants and remitted the claims against the others for the High Court to consider if, and if so in what terms, any interim order should be made against the first and second defendants, respectively those alleged to be guilty of trespass and those interfering with access to the sites: [50].

Longmore LJ (with whom David Richards and Leggatt LJ agreed) was concerned as to the width or and clarity of the terms in which the injunctions had been granted. That was particularly so because the orders interfered with the protestors’ Convention rights of freedom of expression (Article 10) and peaceful assembly (Article 11). As to the importance of the latter, he quoted Professor Dicey’s Law of the Constitution (10^th edition, 1959) [36], which the Judge considered continued to represent the common law [37]:

“No better instance can indeed be found of the way in which in England the constitution is built up upon individual rights than our rules as to public assemblies. The right of assembling is nothing more than a result of the view taken by the courts as to individual liberty of person and individual liberty of speech. There is no special law allowing A, B and C to meet together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases so that he does not commit a trespass, and to say what he likes to B so that his talk is not libellous or seditious, the right of B to do the like, and the existence of the same rights of C, D, E, and F, and so on ad infinitum, lead to the consequence that A, B, C, D, and a thousand or ten thousand other persons, may (as a general rule) meet together in any place where otherwise they each have a right to be for a lawful purpose and in a lawful manner.”

In Ineos, the focus was on torts other than harassment. The Court noted that an injunction to prohibit trespass “can be framed in clear and precise terms” [37]. Indeed, injunctions directed at “persons unknown” concerning the unlawful occupation of land are relatively straightforward. Once the applicant’s right to exclude or remove people from the land is established, and the land clearly defined, the issue of whether the person is or would be committing a civil wrong is binary and usually easily resolved: is the “person unknown” on the land or not?

Ineos demonstrated the complexity of defining other instances of alleged wrongdoing sufficiently clearly in an injunction against persons unknown. The focus was on the difficulties of framing injunctions based on obstruction of the highway. However, Longmore LJ’s identification and discussion of these issues is of general application to injunctions against persons unknown:

The injunction in the present case, targeting as it does alleged “harassment” by the protestors, is a fortiori. Harassment injunctions against protestors raise much more complicated issues. The subject matter of the action is not a property right. The issue is not binary. Whether someone is guilty of harassment and, if so, whether s/he has a defence under s.1(3) PfHA is a complicated and inherently fact specific decision (see the discussion in [51]-[54] above). It for these reasons that Morgan J refused to

As to the lawfulness of granting injunctions against “persons unknown”, Longmore LJ reviewed Cameron and concluded that Lord Sumption had given express approval to Bloomsbury Publishing:[26]-[29]. Heheld that, “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”: [30]. However, Longmore LJ emphasised that courts should be “inherently cautious about granting injunctions against unknown persons since the reach of such an injunction is necessarily difficult to assess in advance”: [31].

The Court of Appeal considered that there was “considerable force” in the submission that an injunction against the fifth defendants (alleged to be those conspiring to cause damage to the claimants by unlawful means) should not have been granted because its terms were neither framed to catch only those who were committing the tort, nor clear or precise in their scope: [33].

Longmore LJ suggested that, on an application for an injunction against persons unknown, the applicant was required to demonstrate that [34]:

The importance of requirement (iv) has been recognised in earlier cases.

At the hearing, and before the Court of Appeal’s decision in Ineos was available, Mr Buckpitt relied upon Burris -v- Azadani [1995] 1 WLR 1372 as demonstrating that injunctions could be granted that included restraint of conduct that was not unlawful. In that case, the defendant had persistently threatened and harassed the claimant, by making uninvited nocturnal visits to her home. The claimant obtained an interim injunction from the County Court restraining the defendant from, inter alia, assaulting, harassing or threatening her or communicating with her. The terms of the order prohibited him from entering or remaining within 250 yards of her home. The defendant did not seek to challenge or vary the terms of the order but repeatedly acted in breach of it. In committal proceedings brought by the claimant, a suspended custodial sentence was imposed on him. On two subsequent occasions he cycled along the road past the claimant’s home in breach of the order. In fresh committal proceedings, the judge rejected the defendant’s contention that the County Court had no jurisdiction to impose the term excluding him from the vicinity of the plaintiff's home. The defendant appealed, contending it was wrong in principle for an injunction to restrain activity which was not unlawful.

Sir Thomas Bingham MR said, at p 1377:

“If an injunction may only properly be granted to restrain conduct which is in itself tortious or otherwise unlawful, that would be a conclusive objection to [the part of the injunction that prohibited the defendant from coming or remaining within 250 yards of the plaintiff's home address], since it is plain that Mr Azadani would commit no tort nor otherwise act unlawfully if, without more, he were to traverse Mandrake Road without any contact or communication with Miss Burris, exercising his right to use the public highway peacefully in the same way as any other member of the public. I do not, however, think that the court's power is so limited. A Mareva injunction granted in the familiar form restrains a defendant from acting in a way which is not, in itself, tortious or otherwise unlawful. The order is made to try and ensure that the procedures of the court are in practice effective to achieve their ends. The court recognises a need to protect the legitimate interests of those who have invoked its jurisdiction… It would not seem to me to be a valid objection to the making of an ‘exclusion zone’ order that the conduct to be restrained is not in itself tortious or otherwise unlawful if such an order is reasonably regarded as necessary for protection of a plaintiff's legitimate interest”. Further, at p 1380:

“Neither statute nor authority in my view precludes the making of an ‘exclusion zone’ order. But that does not mean that such orders should be made at all readily, or without very good reason. There are two interests to be reconciled. One is that of the defendant. His liberty must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff. No restraint should be placed on him which is not judged to be necessary to protect the rights of the plaintiff. But the plaintiff has an interest which the court must be astute to protect. The rule of law requires that those whose rights are infringed should seek the aid of the court, and respect for the legal process can only suffer if those who need protection fail to get it. That, in part at least, is why disobedience to orders of the court has always earned severe punishment. Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.”

Similarly, Schiemann LJ said, at p 1381:

“I agree with the judgment delivered by Sir Thomas Bingham MR. As he points out, there are in these cases two interests to be reconciled - that of the plaintiff not to be harassed and that of the defendant to be allowed to move freely along the highway. An exclusion zone order interferes with the latter in order to secure the former. On its face it forbids what are lawful actions. The defendant has rendered himself liable to such an order because of his previous harassing behaviour. None the less a judge imposing such an order must be careful not to interfere with the defendant's rights more than is necessary in order to protect the plaintiff's.”

Burris was not cited to the Court of Appeal in Ineos. I would distinguish Burris on the grounds: (1) that the defendant had already been found to have committed acts of harassment against the plaintiff; and (2) that an order imposing an exclusion zone around the claimant’s home did not engage the defendant’s rights of freedom of expression or freedom of assembly. It was also a case of an order being made against an identified defendant, not “persons unknown”, to protect the interests of an identified ‘victim’, not a generic class. The case is therefore very different from Ineos and the present case.

More generally, the Court must “keep a watchful eye on claims brought against persons unknown, to guard against any abuse of the facility to bring claims in this way”: GYH

Some of those difficulties presented themselves in Kerner -v- WX [2015] EWHC 178 (QB),a harassment case in which the claimant lacked an immediate method of serving

In my judgment, these principles apply with equal force to this case.

Demonstrations: the Human Rights context

The “right to protest” is one of the deeply embedded rights of the common law. Under the Convention, the right to protest is protected by the rights of freedom of expression and freedom of assembly. These are rights possessed by each citizen, whether exercised alone or with others. Labels may be applied, such as “fracking protestors”, but care must be taken not to assume that all in the identified group share the same objectives or use the same methods of protesting.

Article 10 provides:

Article 11 provides:

Articles 10 and 11 are ‘qualified rights’; restrictions can be placed on the exercise of those rights to protect other identified interests.

To a greater or lesser extent, and depending upon the particular facts in each case, the countervailing “rights of others” likely to arise in protest cases are usually Article 8 (privacy) and Article 1 of the First Protocol (“A1P1”) (protection of property/possessions). The criminal law, its enforcement by the police and powers granted to local authorities also have an important role to play in controlling demonstrations, particularly those that raise public order issues (see [100]-[104] below).

Article 8 provides:

A1P1 provides:

In DPP -v- Ziegler [2019] 2 WLR 1451, the Divisional Court (Singh LJ and Farbey J) described the engaged Convention rights as follows:

In a democratic society, those who demonstrate seek to effect change in several ways. For example, to campaign for changes to the law, to persuade other citizens to support their cause or to persuade others to cease activities or modify their behaviour. History provides many examples of individuals whose powerful advocacy achieved significant change, but almost without exception, those individuals could not have succeeded alone. They depended upon inspiring the support of others, often in large numbers. In demonstrations and protests, as in democracy more widely, numbers matter. As an exercise of democratic autonomy and self-fulfilment, each individual must be permitted to add his/her voice in support of a cause, for example by signing a petition to Parliament or by joining a demonstration. It is not for a public authority to determine what number of demonstrators is “enough” or “sufficient”. To impose such a limit would effectively curtail the democratic rights of those who wished to demonstrate but who fell outside the permitted number. Further, if the number of demonstrators were to be restricted, who would set the limit, on what basis, and how are those “permitted” to demonstrate to be chosen?

As to the assessment of competing human rights, I would summarise the principles as follows:

Demonstrations: public order and the role of the police and local authorities

The evidence in the current case shows that there have been few arrests by the police of demonstrators prior to the grant of the injunction. I was told at the hearing that the Claimants know of no prosecutions of any protestors. Evidence before Teare J suggested that the cost of policing the demonstrations was around £108,000. Of course, individuals and companies are entitled to pursue such private law remedies as are available to them and to seek interim injunctions where appropriate, but this case (and Ineos and Astellas – see [119] below) perhaps demonstrate the difficulties and limits of trying to fashion civil injunctions into quasi-public order restrictions.

When considering whether it is necessary to impose civil injunctions (even if they can be precisely defined and properly limited to prohibit only unlawful conduct) the Court must be entitled to look at the overall picture and the extent to which the law provides other remedies that may be equally if not more effective.

The police play an essential and important role in striking the appropriate balance between facilitating lawful demonstration and preventing activities that are unlawful.

Selected and proportionate use of these powers, adjudged to be necessary and targeted at particular individuals, by police officers making decisions based on an assessment ‘on-the-ground’, is immeasurably more likely to strike the proper balance between the demonstrators’ rights of freedom of expression/assembly and the legitimate rights of others, than a Court attempting to frame a civil injunction prospectively against unknown “protestors”.

Parliament has also provided local authorities powers to make public space protection orders which can restrict the right to demonstrate. Chapter 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 empowers local authorities to make such orders if the conditions in s.59 are met: see Dulgheriu -v- London Borough of Ealing [2019] EWCA Civ 1490.

The other causes of action relied upon by the Claimants

Although I consider that the focus of this case has been harassment (not least for the reasons identified in [21(i)] above), I should briefly identify and consider the other causes of action relied upon by the Claimants.

Trespass

An injunction based on the claim of trespass would be straightforward. The First Claimant is entitled to exclude anyone from its property, including protestors. Whether, in any individual case, an interim injunction is justified requires an application of the principles identified in Elliott (see [63] above).

Obstruction of the highway

s.137(1) Highways Act 1980 provides:

“If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence …”

Obstruction of the highway gives the First Claimant only an indirect cause of action on the basis that the alleged obstruction amounts to a nuisance. There is an obvious tension between those exercising a right to demonstrate and obstruction of the highway. Almost by definition, those using the highway to demonstrate are likely to cause some obstruction of it, and in this respect, Mr Buckpitt relied on authorities that would support that conclusion: e.g. Hirst and Agu -v- Chief Constable of West Yorkshire (1987) Cr. App R 143.

It is now clear that this tension is to be resolved by interpreting “lawful excuse” in s.137(1) compatibly with Articles 10 and 11 of the Convention. The Divisional Court explained how this was to be achieved in Ziegler:

Mr Buckpitt argued that standing and handing out leaflets on the pavement is an obstruction per se. This is so whether a person does so alone or with others. He submits, the greater the numbers the greater the obstruction. He submitted that, before the injunction was granted on 29 November 2017, there had been instances where the highway was obstructed. He drew a distinction between obstructions that had been caused by the protesters’ lawful exercise of their Convention rights and those caused by unlawful activities.

For present purposes, I do not need to resolve this issue. I simply note that the problem confronting the Claimants is that, as the Court stated in Ziegler, the issue is inherently fact-specific to be determined, protestor by protestor, incident by incident. It requires an assessment of what any individual protestor did, where, for how long, for what purpose, and to what effect? I regard it as practically impossible, carrying out the required analysis (summarised in Ziegler [63]-[64]), to frame restrictions prospectively, by way of civil injunction, against persons unknown, which discriminate between lawful exercise of Article 10/11 rights and unlawful obstruction of the highway.

Insofar as the claim for public nuisance is based upon obstruction of the highway, it is dependent upon the same factual analysis and my conclusion is the same.

Watching and besetting

This was the first time that I had come across this ‘tort’. Given that one of the drivers for the PfHA was the problem of stalking, I was sceptical as to (a) the parameters of this cause of action; and (b) whether it had survived the enactment of the PfHA. Mr Buckpitt submitted that the cause of action does remain, albeit the act of merely being present outside of premises is likely no longer actionable in itself. He relied upon J Lyons & Sons -v- Wilkins (1899) 1 Ch 255, 256, where Lindley MR stated:

“The truth is that to watch or beset a man's house with a view to compel him to do or not to do what is lawful for him not to do or to do is wrongful and without lawful authority unless some reasonable justification for it is consistent with the evidence. Such conduct seriously interferes with the ordinary comfort of human existence and ordinary enjoyment of the house beset, and such conduct would support an action on the case for a nuisance at common law ... Proof that the nuisance was ‘peace-ably to persuade other people’ would afford no defence to such an action. Persons may be peaceably persuaded provided themethod employed to persuade is not a nuisance to other people.”

I do not need to consider whether this ‘tort’ still exists and if so in what form. If it does, I am satisfied that it would fall to be construed in a Convention-compliant manner in the same way as the Divisional Court approached obstruction of the highway in Ziegler. Fundamentally, the Claimants face the same problem. As Mr Buckpitt accepts, not all ‘watching and besetting’ is unlawful. Whether it is will depend upon an assessment of the particular facts. In reality, I am doubtful that this adds anything to the other causes of action relied upon by the Claimants.

Private nuisance

This presents the same problems for the Claimants; whether any individual has committed a private nuisance is again fact-sensitive. As the evidence demonstrates, only a handful of people have been using a loud-hailer and causing allegedly excessive noise. The claim that entry to/exit from the Store has been restricted raises factual issues similar to the question of obstruction of the highway.

Conspiracy to injure by unlawful means

There appear to me to be formidable hurdles in the way of a claim of ‘conspiracy’ when none of the alleged conspirators has been identified. How can the Court even begin to assess whether two or more individuals have combined in furtherance of some object without, at least, being able to identify them sufficiently (even if they cannot be named) to know what each individual is alleged to have done? Even then, the Claimants would still have to show that commission of the relevant act by each individual was unlawful. As the above analysis demonstrates, harassment and obstruction of the highway are inherently fact-sensitive. Whilst criminal damage is a more realistic candidate for “unlawful means”, the evidence discloses very few instances of alleged criminal damage and then only by a very small number of individuals. Mr Buckpitt has not advanced alleged offences of criminal damage (or breaches of s.241(1) Trade Union and Labour Relations (Consolidation) Act 1992) as a realistic basis for an injunction against “persons unknown”.

Representative parties

In this case, as I have already noted, two of the named parties are acting also in a representative capacity: the Second Claimant has been permitted to represent various “protected persons” (see [18]); and the Second Defendant represents its “employees and members” (see [36]). Permission to act in these representative capacities was granted by the Court under CPR 19.6, which provides (so far as material):

“(1)

Where more than one person has the same interest in a claim –

(a)

the claim may be begun; or

(b)

the court may order that the claim be continued,

by or against one or more persons who have the same interest as representatives of any other persons who have that interest.

(2)

The court may direct that a person may not act as a representative.

(3)

Any party may apply to the court for an order under paragraph (2).

(4)

Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule –

(a)

is binding on all persons represented in the claim; but

(b)

may only be enforced by or against the person who is not a party to the claim with the permission of the court…

It is important to note that the “persons unknown”, as the First Defendants, are not sued in a representative capacity. They are sued as a class of persons defined in the title to the action. Every member of the class, subject to issues of service, is notionally a personal defendant and faces a claim that s/he is guilty of one or more of the torts identified in [12] above. S/he is unknown, presently, but ex hypothesi, subsequently his/her name could be added to the list of defendants as the protestors are identified.

The choice whether to sue defendants as “persons unknown” or to sue one or more defendants in a representative capacity for the members of the class has certain consequences. In Astellas Pharma Ltd and others -v- Stop Huntingdon Animal Cruelty and the Animal Liberation Front[2011] EWCA Civ 752, the Court of Appeal considered the enforcement of a harassment injunction in a claim brought against the defendant in a representative capacity. The Deputy Judge had refused to grant the claimant permission (under CPR 19.6(4)(b)) to enforce an injunction against the individuals who defendant represented. The Claimant appealed.

In echoes of this case, the claimants had sought summary judgment and a final injunction restraining various persons, identified in the draft order it had submitted as “protestors”, from pursuing a course of conduct amounting to the harassment of various people described as “protected persons”. As the claim against the defendant was proceeding as a representative action, the claimants also sought an order directing that the injunction be enforceable against all protestors as defined in the order.

The Judge made an order in the very wide terms sought by the claimants restraining the “protestors” from harassing the “protected persons”, from demonstrating within 100 yards of their homes or any premises occupied by them and from conducting protests in certain specified areas. But he refused permission to enforce the order against all protestors because he considered that it would be unjust to make an order against unidentified persons without giving them an opportunity to be heard and without giving some consideration to their individual circumstances.

As was made clear by the claimants before the Judge, their principal aim was to ensure that the police, whose responsibility it is in the interests of public order to supervise and control demonstrations of the kind contemplated by the injunction, were able to enforce it by exercising the power of arrest in respect of an offence under s.3(6) PfHA (see [49] above).

Dismissing the claimants’ appeal, Moore-Bick LJ gave the main judgment for the Court of Appeal (with whom Rimer and Ward LJJ agreed) and held, as follows (emphasis added):

The parameters of the appeal meant that the Court did not have to consider, directly, the effect of, and impact on, the protestors’ Article 10 rights, but Moore-Bick LJ did observe [35]:

“Among the matters which will call for consideration by the Court is how to balance the conflict between the rights of the claimants under Article 8 of the EHCR calling for respect to their private life and home and the rights of the protesters to free expression under Article 10. Careful consideration may have to be given to the exact description of the persons unknown and precisely what activities are covered by the order to distinguish that from lawful protest… [The] cases show that difficult issues arise from seeking to join unknown defendants and to enforce injunctions against them.”

In my judgment, Moore-Bick LJ’s analysis has a bearing on several issues in this case. Perhaps most importantly, as the current case is brought against “persons unknown”, not on any representative basis but as individuals, the safeguard provided by CPR 19.6(4)(b) does not apply. The Claimants have argued that the consequence of that is that anyone served with the injunction who fell within the broad definition of “protestor”, and without having been a defendant in the proceedings, would be prima facie liable to arrest if s/he broke its terms (whether or not s/he read it – see [23(i)] above). The hypothetical silent tee-shirt-wearing “protestor”, who had been served with the injunction (as amended on 15 December 2017) and who joined 12 other silent teeshirt-wearing “protestors” in the Exclusion Zone, would be liable to arrest under s.3(6) PfHA, it is argued. Worse, subject only to whether s/he had a “reasonable excuse” for non-compliance, the issue in any criminal prosecution would not be whether s/he had been guilty of harassment, but whether s/he has broken the terms of the injunction. The unlucky 13^th silent tee-shirt wearing protestor would be liable to be arrested, prosecuted and, if convicted, punished with up to 5 years in prison. It hardly needs saying, but such a consequence would require the most compelling justification, if indeed it could be justified.

In Astellas, the Court of Appeal clearly thought that to arrive at that position was wrong, because (referring to the underlined passages from the judgment quoted above):

Application for summary judgment: 30 November 2018

In accordance with the ‘long-stop’ provision in the 15 December 2017 Order, on 30 November 2018, the Claimants issued an Application Notice seeking summary judgment on their claim pursuant to CPR Part 24. It was supported by a witness statement of the Second Claimant dated 29 November 2018.

In summary, the Claimants sought:

In his witness statement, Mr Hayton set out his understanding that the Court could deal with the matter by way of summary judgment and that this course had been adopted “in other cases concerning similar protests against other retailers” and that. “in simple terms”, the interim order would be made a final order. The witness statement contained the following sentence:

“The Claimants believe that on the evidence the Defendants have no real prospect of defending this claim and the Claimants know of no other reason why the disposal of the claim should await trial.”

This, of course, is a necessary averment before the Court could grant summary judgment (see CPR 24.2).

I need to resolve three issues:

Evidence

The Claimants have relied on evidence as to the nature and extent of the protests that had taken place both before and after the grant of the injunction on 29 November 2017. Principally, this was provided in witness statements from the Second Claimant together with video footage and photographs.

From that body of evidence, Mr Buckpitt has placed particular reliance on several incidents of alleged harassment, summarised in chronological order:

I also have considered the evidence that was filed by PETA earlier in the proceedings (see [30]-[35] above).

My assessment of the evidence is as follows:

On the basis of the evidence as a whole, Mr Buckpitt submitted:

“The written and video evidence obtained before the [injunction was granted], reveals scenes which are quite shocking. Hundreds of protestors pushing back and forth with on occasions hundreds of police officers present. Sirens sounding and entry to the Store blocked. That is how it was when there was no order. That is how it will be if no order is made. As a matter of certainty. In these circumstances, it is respectfully submitted that not only is this Court equipped and able to make an order, but it is obliged to make an order that ensures that there is no such repetition, and which gives proper protection to [the Claimants’] rights, whilst ensuring that meaningful and effective protests may continue to take place.”

The fundamental problem with this submission is it treats the “protestors” as a single class, not as individuals. Injunctive relief is then sought to be justified against the entire class by reference to the worst behaviour of a small minority of the individuals within it. This is the wrong approach (see [99(viii)] above). It leads unjustifiably to the interference with the right of protest of individuals who are doing nothing wrong.

Discussion

In most summary judgment applications, the Court would usually start with an assessment of whether the applicant had demonstrated, on the evidence, that the defendant had no real prospect of defending the claim. However, in this case, the procedural complications of this case mean that I should first consider the issue of whether this case is amenable to summary judgment or whether there are reasons why the resolution of the claim should await a trial.

For the reasons set out in paragraphs [24], [26]-[27] and [48], the Claim Form has not been validly served on any defendant in these proceedings. No order for substituted service has been made and there has been no service by any of the methods permitted by CPR 6.5. The Claim Form has only been effectively served on the Second Defendant (the organisation), in the sense that there is evidence that the contents of the Claim Form have come to the attention of the Second Defendant. The Second Defendant, in any event, positively sought to be joined to the proceedings, albeit the order joining the Second Defendant contained no directions for service of the Claim Form (see [36] above).

The Claimants’ solicitor’s assessment of the issue of service of the Defendants (see [47] above) is flawed in two respects:

In written submissions submitted after the hearing, Mr Buckpitt appeared to recognise that there had not been valid service of the Claim Form in accordance with the provisions of the CPR. However, he contended that an application for an order for alternative service had been included within the Claimants’ without-notice application for an injunction on 29 November 2017.At the hearing, the Claimants gave an undertaking to effect service by email of the Order the Claim Form and Particulars of Claim and application notice and evidence in support(see [22(ii)] above). Mr Buckpitt accepts that, he submits in error, the Order of 29 November 2017 provided only for alternative service of the Order and not the Claim Form (see [23] above). He contends that this error was a ‘slip’, albeit the fault lay not with the Court but was contained in the draft that was provided. He acknowledges that, for a valid order for alternative service to be made, the requirements of CPR 6.5(4) must also be observed (see [24(iv)] above). He argues that the 29 November 2017 Order should be amended under the ‘slip rule’ (CPR 40.12) to correct these defects.

Although CPR 40 BPD§4.2 permits an application to correct an error in an order to be made informally, I am not prepared to make any on this basis for the following reasons:

Mr Buckpitt’s fallback position was that the Court ought to dispense with service of the Claim Form on the First Defendants pursuant to CPR 6.16. I am not prepared to make any such order without a proper Application Notice. Given the principles identified in [59(iv)] above, it would appear to me that the Claimants would face significant obstacles in persuading the Court to grant any such order.

There is a further issue that may need to be addressed by the Claimants. The period of validity of the Claim Form is four months from issue: CPR 7.5 (see [61] above). Prima facie, that period has expired. In his written submissions, Mr Buckpitt has acknowledged this issue. He contends, however, that the effect of the stay granted by the Order of 15 December 2017 was to suspend the operation of this 4-month time limit. I am sceptical that this is correct. A stay of proceedings is conceptually distinct from an extension of time that would otherwise be required under the rules.

In his witness statement in support of the application for summary judgment, Mr Hayton stated that the Claimants believed that the defendants have no real prospect of defending the claim (see [129] above). I am not sure to what extent Mr Hayton thought carefully about these words. Had he done so, two fairly fundamental questions may have presented themselves:

Indeed, if Mr Hayton had focused particularly on PETA (simply in its nonrepresentative capacity), how could it be said that PETA had no real prospect of defending the claim? On the basis of the – essentially uncontradicted – evidence of its protest activities (filed before the 15 December 2017) hearing (see [30]-[35] above), the conclusion might be reached that, far from PETA having no real prospect of defending the claim, the Claimants had no real prospect of succeeding with it. My conclusion, based on the evidence presented to the Court, is that the Claimants cannot show that PETA has done anything unlawful (see [134(xi)] above).

Then there is the issue of who are the “defendants” caught by the First Defendant “persons unknown”. Leaving to one side, for the moment, the fact that no-one in this category has been validly served with the Claim Form, the class of people potentially captured as “persons unknown” was not homogenous. Nothing in the operative definition of protestor required or assumed any wrongdoing on his/her part. If the Court granted judgment against the whole class of “persons unknown” it would capture in the net, indiscriminately, the ‘guilty’ and the ‘innocent’ with no way of distinguishing between them. It is fundamentally wrong in principle to grant judgment in a civil claim against a person when the Court is not satisfied s/he has committed or is threatening to commit any civil wrong.

In submissions following the hearing, Mr Buckpitt suggested that these concerns could be addressed by “persons unknown” being redefined as:

“Persons who are present at and in the vicinity of 244 Regent Street, London W1B 3BR and are protesting against the manufacture and/or supply and/or sale of clothing made of or containing animal products by Canada Goose UK Retail Limited and are involved in any of the acts prohibited by the terms of this order (‘Protestors’).”

In my judgment, although this may address the point of demonstrators in Penzance (see [21(iii)] above), it does not define the class of person unknown by their wrongdoing. A form of wording that defined “persons unknown” by reference to their presence (without consent) in the Store would isolate people who are arguably guilty of trespass, but defining the group on the basis of an individual’s involvement “in any of the acts prohibited by the terms of this order” is not acceptable. The fundamental problem in the terms of the order is that they include prohibitions on acts that are not unlawful per se.

These are the unavoidable consequences of utilising the expedient of suing “persons unknown” without making any attempt to discriminate between those against whom there is evidence of wrongdoing and those against whom there is not. Mr Buckpitt advanced an argument that the Claimants have had no choice but to proceed in this way because it is the only way in which they can protect their lawful interests. Indeed, he went to far as to suggest that, “not only is [the] Court equipped and able to make an order, but it is obliged to make an order that ensures that there is no [repetition of the acts complained of], and which gives proper protection to [the Claimants’] rights”. The Claimants have used the language of expediency to justify the order made against “persons unknown”: e.g. that it is “appropriate” to make the injunction – [15] and [20(i)] above; that the terms of the injunction were “fair and balanced” – [28] above; and that there was no way of differentiating between protestors who broke the law and those who did not – [38] above. The imposition of an order that interfered with the protestors’ Article 10/11 rights required to be justified as necessary, not just expedient. Applying the principles identified in [98]-[99] above, the restrictions placed on demonstrations in the injunction are neither necessary nor proportionate.

In any event, I reject the submission that an injunction in the terms sought against “persons unknown” is the only effective way of protecting the Claimants’ rights. The Claimants have chosen not to join as a defendant a single individual protestor from the hundreds that the Claimants judged should be served with the injunction. That is so despite the fact that the Claimants could have named 37 protestors and identified up to 121. The identities of the alleged tortfeasors may have been “unknown” when the interim injunction was first granted, but that is not the position now. Many have been identified by name, others could readily be identified on the video and/or body-camera footage as alleged “wrongdoers” and, if necessary, given a pseudonym

As Lord Sumption made clear in Cameron (see [59(xi)] above), the grant of quia timet interim injunctions against “persons unknown” is the exercise of an emergency jurisdiction which is provisional and strictly conditional:

Mr Buckpitt has relied upon the decision in Vastint Leeds BV -v- Persons Unknown [2019] 4 WLR 2as authority for the proposition that quia timet relief can be granted by final injunction. I accept that, but Vastint appears to me to meet the requirements set out by Lord Sumption. Vastint was a trespass case, not involving protest or alleged harassment (see [76] above).

In their written submissions, the Claimants have provided the following explanation for not joining any individual protestor as a defendant to the claim:

“To join all potential Defendants, with all the commitment, responsibilities and risks that that involves, is unnecessary and disproportionate, and contrary to the overriding objective. The fact that the Claimants have not sought out and named individuals should not be viewed in a negative light, rather it is reflective of a ‘light touch’ approach, reflected also in no steps having been taken by the Claimants (thus far) in respect of those breaches that have occurred. The Claimants have been clear in their evidence that the right to protest is acknowledged and respected. They do not intend to stifle protest. All that they seek are limited, necessary, restrictions on this in a very confined area (the exclusion zones) to ensure public order and that the competing rights of the Claimants and members of the public are safeguarded. As is submitted below, these competing rights deserve at least equal respect.

Indeed, to single out specific individuals and make them parties, with the attendant costs risks they would then bear, would if anything be ‘heavy handed’. It would be likely to have a chilling effect on other protestors. That is not, and has never been the Claimants’ wish: all they wish is to be able to continue their lawful business activities, whilst respecting the rights of protesters to make clear their competing views.”

The wish not to act in a ‘heavy handed’ or disproportionate way is both understandable and laudable. However, I do not accept that this justifies the failure to join individual defendants. If the Claimants wish to alleviate any anxiety that might be felt by an individual defendant as to his/her potential costs’ liability, then that could readily be achieved in other ways (e.g. an assurance as to enforcement of any order for costs). There is a critical difference between a ‘light touch’ to litigation and a failure properly to observe the fundamental requirements of adversarial civil litigation. It was not “unnecessary” or “disproportionate” to join individual defendants. On the contrary, where they could be identified, it is essential if any judgment, or any sort of relief, is to be granted against them. Otherwise, the action simply remains in a state of suspended animation, unable to be progressed to a conclusion, but with an interim injunction order remaining in full force.

The justification for any order against “persons unknown” in this case could only be made out if the “protestors” could properly be regarded as a homogenous unit, all of whom are guilty of, or complicit in, the wrongful acts about which complaint is made. Once this proposition is rejected – as it must be – in favour of an assessment of the alleged wrongdoing of each protestor separately, the Claimants’ claim simply disintegrates. Returning to the fundamental question, it is impossible to identify against whom the Court would or could enter judgment. It cannot be granted against the entire class of “persons unknown”. First, the Court has no idea against how many people it would be granting judgment (or who they are), but more fundamentally, it has no idea who in the class had committed (or threatened) any civil wrong and, if s/he had, what it was. That is before any consideration of what if any remedy should be granted consequent on the judgment in any particular case. Although the Claimants are not claiming damages, consideration of this remedy serves to demonstrate how unreal the Claimants’ submission is. Suppose, despite all the procedural obstacles, the Court nevertheless granted judgment against “persons unknown” and ordered payment of damages of £100,000. What possible justification could there be for a protestor who had committed no civil wrong being made liable to pay some or all of the damages ordered by the Court?

If this were not sufficient for the Court to conclude that summary judgment could not be entered in this case, consideration of what would happen after judgment had been granted produces results that are so extraordinary as to leave no doubt, not only that it is not appropriate to grant summary judgment, but that it would be wrong to do so.

I asked Mr Buckpitt what the Claimants intended to do with any final injunction if they were granted summary judgment. He confirmed that the Claimants planned to continue serving this “final injunction” on new protestors attending future demonstrations (“the newcomer(s)”). These, he submitted, once served, became Defendants and immediately bound by this “final order”, despite the fact that:

Rather optimistically, Mr Buckpitt suggested that all these concerns could be adequately addressed by the inclusion of a provision in the “final order” permitting any newcomers to apply to vary or discharge the “final order”.

Put bluntly, this is just absurd. It turns civil litigation on its head and bypasses almost all of the fundamental principles of civil litigation – see [55]-[60] above. Unknown individuals, without notice of the proceedings, would have judgment and a ‘final injunction’ granted against them. If subsequently, they stepped forward to object to this state of affairs, I assume Mr Buckpitt envisages that it is only at this point that the question would be addressed whether they had actually done (or threatened to do) anything that would justify an order being made against them. Resolution of any factual dispute taking place, one assumes, at a trial, if necessary. Given the width of the class of protestor, and the anticipated rolling programme of serving the ‘final order’ at future protests, the Court could be faced with an unknown number of applications by individuals seeking to ‘vary’ this ‘final order’ and possible multiple trials. This is the antithesis of finality to litigation.

This state of affairs arises because the Claimants have made no effort to narrow the class of persons unknown in a way that enables them to be identified (even if not named) and for a decision to be made, on an assessment of the evidence, whether each person has committed (or is threatening to commit) a civil wrong.

In my judgment, in this case, the Claimants were required to identify the individuals against whom they were pursuing their claim and make then defendants to the proceedings as promptly as practicable. The majority of the individual protestors captured on the video footage are not people against whom the Claimants could maintain any claim that would have any real prospect of success. If the Claimants had addressed this point, they would have excluded these people as possible defendants. These people should not be left to be swept up into the definition of “persons unknown” on the basis of expediency or want of a more discriminating approach.

I reject Mr Buckpitt’s suggestion that by refusing summary judgment the Court would be failing in its duty. On the contrary, I am quite satisfied that summary judgment must be refused. The Claimants are not left without remedy. The Court is simply insisting that the Claimants should bring forward claims against identifiable individuals that are, so far as practicable, capable of being resolved in accordance with the Court’s established procedures for deciding civil claims. The evidence in this case demonstrates that this is neither unachievable nor unreasonable. 37 people have been identified by name, more still can be identified by description from the video or other evidence. Ultimately, when this is done, the Court could adjudicate whether these people have committed any civil wrong (or might do if not restrained) and, if so, what remedy should be granted against them. The Court’s resources and its orders are thereby targeted only

Mr Buckpitt submitted that a final injunction substantially in the terms of the interim injunction would meet the requirements suggested by the Court of Appeal in Ineos [34]. I disagree. For the reasons I have addressed above, it is not impossible to name the persons against whom relief is sought and, more importantly, the terms of the injunction would impose restrictions on otherwise lawful conduct. Further, the interim injunction (and in particular the size and location of the Exclusion Zones) practically limits the number of people who can demonstrate outside the Store to 12. This figure is arbitrary; not justified by any evidence; disproportionate (in the sense there is no evidence that permitting a larger group would not achieve the same object); assumes that all demonstrators share the same objectives and so could be ‘represented’ by 12 people; and wrong in principle (see [98] above). Who is to decide who should be one of the permitted 12 demonstrators? Is it ‘first-come-first-served’? What if other protestors do not agree with the message being advanced by the 12 ‘authorised’ protestors?

The Second Defendant (in its non-representative capacity) does have a real prospect of defending the claim. As I have set out above, the present evidence does not show that the Second Defendant has committed any civil wrong. As such, I am satisfied that it has a real prospect of defending the claim.

In relation to the First Defendants, and those for whom the Second Defendant acts in a representative capacity, it is impossible to answer the question whether they have a real prospect of defending the claim because it is impossible to identify who they are, what they are alleged to have done (or threaten to do) and what defence they might advance. Whether any individual defendant in these classes was guilty of (or threatening) any civil wrong would require an analysis of the evidence of what s/he had done (or threatened) and whether s/he had any defence to resist any civil liability. On the evidence, therefore, I am not satisfied that the Claimants have demonstrated that the defendants in each of these classes has no real prospect of defending the claim. On the contrary, on the evidence as it stands, it is clear that there are a large number of people caught by the definition of “persons unknown” who have not even arguably committed (or threatened) any civil wrong. As there is no way of discriminating between the various defendants in these categories, it is impossible to identify those against whom summary judgment could be granted (even assuming that the evidence justified such a course) and those against whom summary judgment should be refused.

Decision

For the reasons I have set out, I refuse the Claimants’ application for summary judgment.

I am also satisfied that, applying the principles from Cameron and Ineos, the interim injunction that is currently in place cannot continue in its current form, if at all. There are fundamental issues that the Claimants need to address regarding the validity of the Claim Form and its service on any defendant. Presently, no defendant has been validly

Finally, the case number of this claim suggests that it has already been allocated to the Media & Communications List, but if it has not, and subject to any submissions the Claimants wish to make, it appears to me that the issues raised in the claim mean that it should be allocated to the Media & Communications List. I note that, when the modifications to CPR Part 53 come into force from 1 October 2019, claims like this, that include claims for harassment by speech, must be issued in the Media & Communications List of the Queen’s Bench Division (CPR 53.1(3)(c)).