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Court of Appeal finds that injunctions against “persons unknown” can (i) be framed by reference to a defendant’s intention and (ii) prohibit lawful conduct

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management - Disclosure – Other


Cuadrilla Bowland Ltd & Ors v Persons Unknown & Ors [2020] EWCA Civ 9


  • In Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515 the Court of Appeal found that there was no prohibition on either:
    • suing persons unknown, who are not currently in existence but will come into existence when they commit a threatened tort; or

    • granting an injunction to restrain such persons from committing a tort which has not yet been committed (a “quia timet” injunction)

  • The Court of Appeal also stated that a court should be inherently cautious about granting quia timet injunctions against persons unknown, since their reach is necessarily difficult to assess in advance. It therefore “tentatively” identified six requirements for such injunctions. These are set out in our briefing on this case, click here.

Facts of the Case

  • This case concerned an injunction against persons unknown, which prevented them from interfering with certain property rights of the Claimant. The relevant paragraphs of that injunction referred to acts by persons unknown which had the “intention” of causing inter alia damage.

  • The Defendants subsequently undertook the prohibited acts, which led to their committal for contempt of court. One of the Defendants’ grounds for appeal was that the relevant terms of the injunction, which turned on their intentions, were insufficiently clear and certain to be enforceable.

The Decision

  • The Court of Appeal found that inter alia:
    • The injunction that the Defendants breached was sufficiently clear and certain to allow them to know what they were prohibited from doing, despite the references to the Defendants’ intentions. The concept of “intention” does not have any special legal meaning, and is not difficult for a member of the public to understand without legal advice.

    • While it was undoubtedly desirable that the terms of an injunction should correspond to the threatened tort and not be so wide that they prohibit lawful conduct, that could not be regarded as an absolute rule.

Analysis and Practical Advice

  • In arriving at the above findings, the Court of Appeal revisited its findings in Ineos in two respects.

  • First, it caveated the requirement that a quia timet injunction should not prohibit lawful conduct, following precedents being drawn to its attention which were not before it in Ineos. Therefore, while a court should not impose an injunction in terms wider than are necessary to do justice, it may restrain conduct that is not of itself tortious or otherwise unlawful, provided it is satisfied that such a restriction is necessary in order to give effective protection to the rights of the claimant.

  • In this case, the Court of Appeal did not need to go on to decide what, if any, difference it would make if the injunction were against named persons. However, it is understood that this point may be considered in the upcoming appeal in Canada Goose UK Retail Ltd v Persons Unknown [2019] EWHC 2459 (QB).

  • Secondly, the Court of Appeal reconsidered the concern it had expressed about referring to intention in an injunction, namely that the defendant’s intention is not necessarily known to the outside world (in particular to the claimant) and is susceptible to change. Accordingly, whether a person was a defendant to proceedings would turn not on anything which that person had done, but solely on their state of mind (which might change). Having had the benefit of hearing further argument on the point, the Court of Appeal considered that the same objection would not however apply if the injunction were framed in terms of prohibiting specified acts with a specified intention.

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