Another wild goose chase: Canada Goose v Persons Unknown

Last year, we commented on the High Court’s pragmatic approach to injuncting against Persons Unknown where there was a “significant risk” of presently unidentified others damaging or trespassing on the landowner’s property. In the title case the High Court recently elaborated guidance on bringing proceedings against Persons Unknown and left the claimants spitting feathers by refusing their application for summary judgment and retracting an existing interim injunction for alleged harassment, trespass and nuisance against Persons Unknown.

The case concerned animal welfare protests outside the claimants’ flagship Regent Street store.

Mr Justice Nicklin’s reasons for his decision included the following concerns:

1. The Persons Unknown had not been served the claim form and were therefore deprived of the opportunity to raise a defence, contrary to the fundamentally adversarial nature of English civil litigation.
2. The broad definition of “protestor” in the order stretched to injunct even persons innocent of committing any civil or criminal wrong. Mr Justice Nicklin was set against granting judgment against a person, and interfering with their right of protest, when the Court could not be satisfied they had committed a civil wrong. It would be inordinately wrong to ask innocent and unsuspecting protestors to pay the claimants’ damages and costs.
3. The claimants omitted to name and identify certain protestors in the proceedings as they became known to the claimants and “made no effort to narrow the class of Persons Unknown in a way that enables them to be identified”. This compounded the finding that an injunction against Persons Unknown was not the claimants’ only effective way of protecting their rights. The claimants could have identified as many as 121 protesters (even without their names) by describing their appearances and actions at specified times captured on body-cam footage. This process would not be disproportionate and would focus the action (and any remedy) against actual wrongdoers. Claimants must take every step practicable to identify defendants before the Court will injunct against Persons Unknown and, even then, it will only do so on an emergency and conditional basis, pending their identification.
4. The Persons Unknown could not properly be regarded as a “homogenous unit, all of whom are guilty of, or complicit in, the wrongful acts” complained of.
5. It was impossible for the Court to know how many people it would be granting judgment against and Mr Justice Nicklin found it “just absurd” that, if successful, the claimants planned to serve the injunction on newcomers to the protests and expose an indefinite opportunity for the defendants to ‘vary’ the ‘final order’.

Mr Justice Nicklin reiterated the requirements for an injunction against Persons Unknown suggested in the Ineos case, which is a useful reminder to landowners when preparing a claim in trespass against Persons Unknown:

1. There must be a sufficiently real and imminent risk of a tort being committed;
2. It must be impossible to name the persons who are likely to commit the tort unless restrained;
3. It must be possible to give notice of the injunction;
4. The terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;
5. The terms of the injunction must be sufficiently clear and precise to enable persons potentially affected to know what they must not do; and
6. The injunction should have clear geographical and temporal limits.

Canada Goose largely fell short in respect of the bold requirements.

Canada Goose UK Retail Ltd v Persons Unknown and another [2019] EWHC 2459 (QB)

Article co-authored by Kieran Sharman.