Injunctions against persons unknown: the wild goose chase continues

United Kingdom

The Court of Appeal has given judgment in the latest round of the battle between Canada Goose and the animal rights protestors, including some useful guidance about applications against persons unknown (Canada Goose UK Retail Ltd v Persons unknown and PETA [2019] EWHC 2459 (QB)).

Key take-away points

When dealing with large groups of protestors steps should be taken to ensure that all court documents are served – particularly for service on ‘persons unknown’, permission should be sought for that to be done by alternative means such as posting them visibly at the site and making the documents accessible on the internet.

Ensure that the terms of any injunction are sufficiently clear using non-legal, simple language, so that a member of the public is able to understand whether they fall within the scope of the order and what they are not allowed to do. In terms of balancing public rights against private interests, any injunctive relief should provide clear temporal and geographical boundaries and be made by reference to the effect of action taken rather than the intention of the parties taking that action.

Brief background

Last year, we reported on the High Court decision to refuse Canada Goose’s application for summary judgment for alleged harassment, trespass and nuisance against persons unknown. Canada Goose is a clothing company specialising in luxury coats, some of which are made using animal products such as fur and down. The company’s flagship store in Regent Street, London, has been the target of protests by animal rights campaigners.

The interim injunction

On 29 November 2017 the court granted an interim injunction against “Unknown Persons” defined as people protesting against the manufacture and sale of clothes made of or containing animal products, at the Regent Street shop. The injunction had subsequently been provided to more than 300 people who had protested outside and inside the store, which had been approved as an alternative method of service of the interim order. Despite Canada Goose potentially being able to identify around half of those individuals, none were then named as a party to the proceedings.

Canada Goose’s application for summary judgment

On 29 January 2018, Canada Goose applied for summary judgment to make the interim injunction against “Unknown Persons” into a final order. The court refused the application for summary judgment and ordered that the interim injunction should be discharged.

The Court of Appeal hearing

The case was decided against the backdrop, and with the benefit of, two recently decided cases: Ineos Upstream Ltd v Persons Unknown [2019] and Cuadrilla. In confirming the High Court’s decision, the Court of Appeal broadly supported the approach taken by Longmore LJ in Ineos and provided the following useful guidance:

  • Service - whilst Canada Goose had served the interim injunction order they had not validly served the claim form on any of the Defendants and the Court was critical of them for not having taken steps to do so. For example, by seeking an order for alternative service to allow the claim form to be served in a manner similar to the interim order. Service of the claim was a fundamental principle of the judicial system and this obligation should not be taken lightly especially where it was possible to obtain orders for alternative service. Final orders cannot usually be granted against people on whom the claim form has not been served.
  • Definition of “Unknown Persons” too wide - as a result of the wide definition of “Unknown Persons” against whom Canada Goose sought to obtain a final order, granting summary judgment and a final injunction would indiscriminately punish both people who had committed a civil wrong and those who had not, without any way of distinguishing between them. The restrictions that Canada Goose wanted to place on the number of demonstrators was “neither necessary nor proportionate” and would have potentially impacted others outside the protesting group, for example, users of neighbouring properties.

  • Identifying Persons Unknown –  the Court approved the categories identified by Longmore LJ in Ineos and added a further category, so that it considered three likely categories of “persons unknown”: those who are identifiable but whose names are unknown (e.g. squatters occupying land); those who are anonymous and cannot be identified (e.g. hit and run drivers); and those who will or are likely in the future to commit an unlawful civil wrong (e.g. protestors and demonstrators). This distinction is critical for the purposes of service of proceedings, which is necessary for the purposes of establishing the Court’s jurisdiction.Service on the first and third categories is possible, even if the individuals comprising the category described as “Persons Unknown” cannot be identified when proceedings are raised; by contrast the second category cannot ever be identified. The Court acknowledged that the third category is difficult to identify as it is a fluctuating group, but considered that did not prevent an injunction being granted against those within that group or those who in future bring themselves within that group, for example by reason of their actions. However, care must be taken to seek properly to identify those in that group and that is best done by reference to their actions. Although it is possible to do so by reference to their intention, i.e. to disrupt the legitimate business interests of the claimant, it is better to phrase that by reference to the actions complained of, or the impact of such actions, to avoid any evidential difficulty where seeking to enforce the terms of any order.
  • Terms of injunction – these should be sufficiently clear for a member of the general public to understand what they must not do. In that regard they should avoid technical and legal language.
  • Remedy - the Court did not say there was no possible remedy for Canada Goose; it simply insisted that Canada Goose must bring claims against identifiable individuals or groups of individuals so that the court could judge whether these people had committed, or may commit, any civil wrong. That could include granting a final injunction but only where the defendants were clearly identified and had received service of the claim. In addition the restrictions imposed by a final order would apply only to those defendants properly identified in the proceedings at the date of grant of the order and the scope of the order must be clear both temporally and geographically.
  • Private rights v Public Law – the Court was concerned to ensure that the appropriate balance was struck between these two competing interests. Identifying the protestors avoids the imposition of general restrictions on the right to protest and freedom of expression; restriction imposed on such public rights should be no more than necessary and proportionate for the protection of legitimate interests. The Court was keen not to be overly prescriptive as to the nature of any future orders and confirmed that the Court would be entitled, in the right circumstances, to limit even lawful activity if there was no other proportionate way to protect legitimate private interests and prevent civil wrongs. However the Court of Appeal highlighted the competing interests between the Claimant’s private property rights and the Defendants’ rights to peaceful protest and commented that Canada Goose sought to use private litigation for a task to which it was not wholly suited, namely, to address what it effectively saw as public disorder; the civil justice system is a “far blunter instrument” than the powers conferred by Parliament on local authorities requiring a balance between public rights and private interests, for example under the Anti-social Behaviour, Crime and Policing Act 2014.