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Lawbite: The dangers of a wild goose chase

  • United Kingdom
  • Litigation and dispute management
  • Real estate
  • Real estate dispute resolution

15-10-2019

Canada Goose UK retail Ltd and James Hayton v Persons Unknown (1) and People for the Ethical Treatment of Animals (PETA) Foundation (2) 2019 EWHC 2459

Clothing retailer Canada Goose (“CG”) recently failed to persuade the Court that it should be awarded summary judgment of its claim and a final injunction against animal welfare protestors aggrieved with their sale at its Regent’s Street store in London of products manufactured using animal fur and down. 

The interim injunction had been obtained against (1) “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” and (2) the campaign group People for the Ethical Treatment of Animals (PETA). 

When it came to the applications for summary judgment and final injunction, the first issue for the court to consider was that, although the interim injunction order had been served by various methods, the Claim Form had not.  The court decided that this fundamental omission could not be corrected retrospectively by invoking the “slip rule” under CPR 40.12 or by a retrospective order to dispense with service.  There was an important distinction between orders that the court did make that were not correctly recorded and orders - as in this case – that a party considers the court should have made but had not.

In any event the court considered that the case did not meet the test for summary judgment being that the defendant had no reasonable prospect of defending the claim and there was no other reason why disposal of the claim should await trial.

In undertaking its analysis the Court concluded that the class of people potentially captured as “persons unknown” was not homogenous and any judgment granted against this category ran the risk of catching the guilty and the innocent without distinguishing between them.  That ran contrary to the fundamental principle that a court should not grant judgement if it was not satisfied that the defendant had committed or threatened to commit a civil wrong. 

Further, the restrictions imposed upon such a wide category of defendants, some of whom could be behaving lawfully - albeit with the intention of protesting against CG’s activities - was neither necessary nor proportionate.  As such, the imposition of an injunction order which interfered with the protestors’ human rights under Article 10 (freedom of expression) and Article 11 (freedom of assembly) was not justified.

The court also concluded that, on the evidence, CG could not show that PETA had no reasonable prospect of defending the claim at trial.

Key points

  • Anyone seeking to obtain an injunction against persons unknown should consider carefully the categories of unnamed individuals who are defined as defendants in the proceedings.   The nature of the unlawful activity which is being carried out by those individuals and which puts them in the category of defendants should be articulated as clearly as possible.
  • The judgment also suggests that where the identity of specific individuals who are carrying out unlawful conduct becomes known consideration should be given to adding them as named parties to the proceedings and/or narrowing the class of persons unknown in a way that allows them to be more clearly identified.
  • It emphasises the hurdles involved (previously highlighted in the recent case of Boyd v Ineos Upstream limited [2019] 4WLR 100) in obtaining an injunction against harassment.  Conduct which is irritating and annoying does not necessarily equate to oppressive and unacceptable behaviour such as to cross the threshold into unlawful harassment.
  • A timely reminder of the importance of complying with the procedural aspects of litigation. 

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