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Lawbite: Another look at the dangers of a wild goose chase

  • United Kingdom
  • Litigation and dispute management
  • Real estate dispute resolution
  • Real estate litigation - LawBite

14-05-2020

Canada Goose UK retail Ltd and James Hayton v Persons Unknown (1) and People for the Ethical Treatment of Animals (PETA) Foundation (2) [2020] EWCA Civ303

The latest in a flurry of decisions about the scope of injunctions against persons unknown has been heard by the Court of Appeal.  It establishes some key principles which anyone considering applying for an injunction against unknown individuals should pay close attention to.

The clothing retailer Canada Goose (CG) had been targeted at its Regent Street store by animal welfare protestors aggrieved by the sale of products manufactured using animal fur and down.  Although initially it obtained an interim injunction against both “Persons Unknown” and PETA the High Court refused to grant summary judgment and a final injunction.  CG therefore asked the Court of Appeal to overturn that decision.

Firstly the Court of Appeal upheld the High Court’s finding that the CG’s failure to serve the claim form in the proceedings could not be cured either by invoking the “slip rule” under CPR 40.12 or by a retrospective order to dispense with service.  It agreed that the slip rule was not an appropriate means by which to correct such a fundamental omission and the High Court was entirely right to refuse to make an order for retrospective service by an alternative method in circumstances where there was no evidence that the claim form had come to the attention of persons unknown.

CG then asked the Court of Appeal to consider the High Court’s findings about the scope of the injunction which could be ordered against persons unknown.  Specifically that the scope of the original injunction had been too broad, the category of “Persons Unknown” was not homogenous and that any judgment granted against this category ran the risk of catching the guilty and the innocent without distinguishing between them.

Having considered the conclusions it had reached in the Ineos and Cuadrilla cases (both of which had been heard since the previous CG hearing) the Court of Appeal drew some significant conclusions about the scope of the interim injunction which could be granted:

  • the category of “Persons unknown” should be limited to those individuals who are in principle capable of being identified - albeit they are not yet known. If individuals become identified they should be added as named defendants
  • although the definition of “Persons Unknown” used in the proceedings should refer to unlawful conduct which it is alleged they are carrying out, in principle the acts prohibited by the interim injunction could include lawful conduct if – and only to the extent - there is no other proportionate means of protecting the claimant’s rights
  • it was reemphasised that the terms of the injunction must be sufficiently clear and precise. Where possible the scope of the acts which are prohibited by an interim injunction should not be defined by reference to the intention of the defendants.  Better practice is to use non legalistic or technical language and focus on the effect of the conduct rather than what the defendants might or might not intend by it
  • in principle the scope of individuals caught by an interim injunction can include people who join the ongoing protest after the interim injunction  has been ordered  (“Newcomers”) providing they fall within the category of people defined as “Persons Unknown”. 
  • however, when it came to the grant of a final injunction the position was different as regards Newcomers.  It was said to be a fundamental principle that a final injunction could only bind the parties to the proceedings at the time of the final hearing
  • if anonymous defendants were identifiable as having committed unlawful acts prior to the date of the final order they would be bound.  What the final order cannot do however is bind individuals who have not by the time of the final order committed any wrongdoing.  It was not the purpose of a final civil injunction to seek to permanently control ongoing public demonstrations by a continually fluctuating body of protestors

Applying these principles the Court of Appeal concluded that the High Court had been correct to conclude that the scope of the final injunction sought by CG was too wide and the appeal was dismissed.   

Key points

  • the case reinforces the need to carefully and clearly define the categories of unnamed defendants in the proceedings by reference to the unlawful conduct they are carrying out or threatening
  • where the identity of specific individuals who are carrying out unlawful conduct becomes known, they should be added as named parties to the proceedings
  • in those circumstances applicants can also expect to be scrutinised as to how hard they have tried to identify and add named defendants to the proceedings prior to the hearing of an injunction application
  • if there is a prospect of significant numbers of Newcomers becoming part of the campaign after an interim injunction is obtained, consideration ought to be given to the timing of the final injunction hearing since the cohort of individuals who are caught by any final order will be fixed once it is granted
  • alternatively, in appropriate circumstances, where the campaign is fluctuating, an alternative approach may be to consider seeking successive interim injunction orders rather than a single final order
  • ultimately newcomers who join the campaign after the final injunction is granted will not be bound and a second set of proceedings would be required to bind those individuals to an injunction order

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