Injunctions against “Persons unknown” in public protests curtailed – Gareth Rhys

20 March 2020 by Guest Contributor

Canada Goose UK Retail Ltd v Persons unknown and People for the Ethical Treatment of Animals (PETA) [2020] EWCA Civ 303 on appeal from [2019] EWHC 2459 (QB) – Gareth Rhys

All references in square brackets are to paragraphs in the Court of Appeal judgment

The Court of Appeal has articulated the guiding principles that apply when seeking interim and final relief against ‘persons unknown’ in cases of public protests. The decision will be regarded as a win for civil liberties organisations and activist groups given that the Court has greatly restricted the circumstances in which injunctive relief may be sought against unknown protesters. This case has distilled the jurisprudence following the decisions in Cameron v Liverpool Insurance Co Ltd [2019] UKSC 6 and Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515.

Background

Canada Goose is an international company that manufactures and sells clothing containing animal fur and down. They brought a claim in damages and injunctive relief against ‘persons unknown’ who protested the use of animal products outside Canada Goose’s Regent Street shop.

The Canada Goose shop had been frequently targeted by activists protesting the use of fur and down. Some of the protesters were members of animal rights charity PETA (People for the Ethical Treatment of Animals), others were members of another activist organisation known as Surge Activism and some were unaffiliated individuals [5-6].

The protests largely consisted of fewer than 20 protesters holding banners and handing out leaflets outside the shop. Some of these demonstrations were organised by PETA itself with notice given to the Police. On occasion the protests were much larger and had a serious impact on the shop’s operation. A minority of protesters were more aggressive and insulted customers or staff. During a few of these protests criminal acts were committed including an act of violence and vandalism resulting in a number of arrests [7-8].

The Injunctions

Proceedings were begun by Canada Goose on 20 November 2017. The claim was an action pursuant to the common law torts of trespass, watching and besetting, public and private nuisance and conspiracy to injure by unlawful means. The respondent named in the Claim Form was:

Persons unknown who are protesters 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 W1B 3BR.

The particulars of claim described the ‘persons unknown’ as all people who had protested at the shop in order to further the campaign of boycotting the sale of Canada Goose animal products [10]. On the same day as the Claim Form was issued the claimants applied for an injunction without notice. Teare J granted an injunction restraining the ‘persons unknown’ from a list of fourteen acts within three different zones varying in proximity from the shop [12]. The order permitted the claimant to serve the order on:

any person demonstrating at or in the vicinity of the store by handing or attempting to hand a copy of the same to such person and the order shall be deemed served whether or not such person has accepted a copy of this order [14]

Alternatively, the order also permitted the claimants to serve the order by email. The order was expressed to remain in force unless varied or discharged by further order of the court and provided for a further hearing on 13 December 2017 [14-15].

On 29 November 2017, the order was sent to PETA and Surge Activism’s email inboxes along with the Claim Form and Particulars of Claim. The following day Canada Goose issued an application notice for the continuation of Teare J’s order. On 12 December 2017 PETA successfully applied to be joined as a defendant [16-18].

At the hearing on 15 December 2017 PETA challenged several restrictions in the injunction order on the basis that they were a disproportionate interference with the right of the protestors to freedom of expression and freedom of assembly under Articles 10 and 12 of the ECHR [19]. The judge continued the injunction but varied it by permitting twelve protesters in the Outer Exclusion Zone and increasing permitted use of a Loudhailer [20]. The order was stated to continue in force unless varied and discharged by further order of the court and all procedural directions to be stayed subject to a long-stop requirement that Canada Goose apply for summary judgment or a case management conference before 1 December 2018 [21].

Refusal of summary judgment

Protests at the shop did not stop and Canada Goose alleged breaches of the injunction order. On 29 November 2018 Canada Goose applied for summary judgment for a final injunction against the ‘persons unknown’ only [22]. The terms of the final injunction applied for differed in some respects from the interim injunctions and Canada Goose introduced a new description of the ‘persons unknown’:

Persons who are present at and in the vicinity of 244 Regent Street, London W1B 3BR and are protesting against the manufacture and/or supply and/or sale of clothing made of or containing animal products by Canada Goose UK Retail Limited and are involved in any of the acts prohibited by the terms of this order [23]

The application for summary judgment was dismissed and the interim injunctions discontinued. Nicklin J held that the Claim Form and Particulars of Claim had not been validly served by any permitted method under CPR r6.5 and no alternative service had been permitted under CPR r6.25. Alternative service had only been permitted for service of the order of Teare J. He refused to amend the order under the ‘slip rule’ and refused to dispense with service of the Claim Form without a proper application [28].

Nicklin J also held that the description of ‘persons unknown’ was too broad a class and was capable of including protesters who never even intended to visit the shop. The injunction was also defective because it caught people who had not committed any unlawful activity [29] and because it would capture new future protesters who were not parties to the proceedings at the time of his giving judgment [31]. Additionally, some protesters were identified which meant proceedings ought to have been brought against those named individuals [30].

Court of Appeal judgment

Canada Goose appealed.

The ‘slip rule’

The Court of Appeal held that Nicklin J made no error of principle and acted within the bounds of his judicial discretion in declining to apply the ‘slip rule’ under CPR r40.12 to correct Teare J’s orginal order. The existence of the rule is to give effect to the intention of the court by correcting an accidental slip. It does not permit the court to insert subsequent additional thoughts [42-42].

At the hearing, Teare J was not addressed on the issue of service so it was impossible to know whether he had considered alternative service of the Claim Form and Particulars of Claim. He was simply asked to make an order in the terms presented to him. On that basis Nicklin J was justified in refusing to amend the order under the ‘slip rule’ [44].

Alternative service on ‘persons unknown’

The Court held that Nicklin J was correct in finding that the description of ‘persons unknown’ was too broad a category of respondent. He was not merely acting within his discretion by refusing to order effective alternative service under CPR r6.15(2) [45]. The Court of Appeal emphasised the importance of service to ensure justice is done, citing the Supreme Court at para 17 of Cameron:

It is a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard.

At para 21 of Cameron, the Supreme Court went on to consider the provision for alternative service under CPR r6.15 specifically:

subject to any statutory provision to the contrary, it is an essential requirement for any form of alternative service that the mode of service should be such as can reasonably be expected to bring the proceedings to the attention of the defendant

The Court of Appeal found that emailing the Claim Form to Surge Activism’s email address could not reasonably have been expected to have brought the proceedings to the attention of the ‘persons unknown’ respondents. Further, there was no requirement in Teare J’s order that Surge Activism were obliged to give wider notice of the proceedings to anyone [47].

Dispensation from service

The Court held that there was no proper basis for an order to dispense with service of the Claim Form under CPR r6.16. It held that, in effect, Canada Goose was requesting for dispensation from service on any of the ‘persons unknown’ even if they had never been served with the order or had no knowledge of the proceedings [48-49].

Additionally, the Court considered that it had been open to Canada Goose to obtain an order for alternative service which had a greater likelihood of bringing notice of the proceedings to the attention of the protesters. The examples given were posting the Claim Form, Particulars of Claim and order on social media or affixing the documents somewhere nearby the shop. There was no reason why the Court should use its power to dispense with service to overcome Canada Goose’s failure [50]. Such a failure did not constitute the ‘exceptional circumstances’ that would justify an order under CPR r6.16 [54].

Interim relief against ‘persons unknown’

The Court of Appeal held that distinction drawn by the Supreme Court in Cameron between identifiable anonymous defendants and unidentifiable anonymous defendants did not cover a third category of anonymous defendants. These were people, such as the protesters in this case, who were highly likely in the future to commit an unlawful civil wrong against whom a quia timet injunction was sought. The Court of Appeal in Ineos permitted a claimant to seek an injunction against ‘persons unknown’ even where such a person would only come into existence on the commission of the unlawful act. They termed this third category of ‘persons unknown’ as ‘Newcomers’ [66].

Following both Cameron and Ineos, the Court set out procedural guidelines applicable to interim injunction applications against ‘persons unknown’ [82]:

1. The ‘persons unknown’ in the Claim Form, including Newcomers, must be capable of being identified and served with proceedings at the time proceedings begin. They should be served with proceedings, by alternative service where necessary. Defendants who have been identified at the time of issuing proceedings must be joined as individual defendants;
2. The ‘persons unknown’ must be defined by reference to the allegedly unlawful conduct;
3. Interim injunctive relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
4. The prohibited acts must correspond to the threatened tort;
5. The terms of the injunction must be sufficiently clear, precise and framed in ordinary language;
6. The interim injunction should be clearly geographically defined and time limited.

Having enunciated these principles, the Court of Appeal found that the injunctions granted by Teare J were not permissible [83]. The description of ‘persons unknown’ was too wide and the prohibited acts were not confined to unlawful acts. Further, the injunctions were not time limited and did not provide a method of alternative service that was likely to bring the existence of the order to the attention of the ‘persons unknown’ [86].

Final order against ‘persons unknown’

The Court held that a final injunction cannot be granted in protester cases against ‘persons unknown’ who are not parties at the date of the final order. Newcomers who have not committed the prohibited acts by that date are not ‘persons unknown’ for the purposes of the injunction. ‘Persons unknown’ may be subject to a final injunction provided that they are identifiable anonymous defendants as defined in Cameron.

Canada Goose was seeking to invoke the civil jurisdiction of the courts as a means of permanently controlling ongoing public demonstrations by a continually fluctuating body of protesters. In effect it was an attempt to use private law remedies to prevent purported public disorder, which were not apt for the task. Such a control on demonstrations involve a complex balancing of private rights, civil liberties, public expectations and government policy. The Court noted that Parliament had conferred powers on local authorities to make public spaces protection orders under the Anti-social Behaviour, Crime and Policing Act 2014 but these orders required the local authority to carry out consultation and take into account the rights of freedom of assembly and expression [93].

Conclusion

There are now clear guidelines that apply to injunctions against ‘persons unknown’. The effect of the judgment will be that applicants must give careful consideration to these criteria in any future application.

Permission to appeal to the Supreme Court has been granted.

Gareth Rhys is currently a pupil barrister at 1 Crown Office Row, seconded from the HMRC