Injunctions against persons unknown

September 30th, 2019

An injunction should not be granted against persons unknown when the wording of the injunction sought to restrain tortious conduct is wide enough to include persons who had not committed, or threatened to commit, any civil wrong. In Canada Goose v Persons Unknown (2019) EWHC 2459 (QB) Nicklin J said, at paragraphs 62-89 and 144-163, that the class of people potentially captured as “persons unknown” was not a homogeneous group. Nothing in the operative definition required or assumed any wrongdoing on their part. If judgment was granted against the whole class of persons unknown it would capture everyone indiscriminately. It was fundamentally wrong in principle to grant judgment in a civil claim against a person when the Court was not satisfied they had committed or threatened to commit any civil wrong. The claimants could have named 37 protesters and identified up to 121 by description. Only if that were done could the Court begin the task of assessing whether each of the alleged wrongdoers could be shown to have committed any civil wrong. The grant of a quia timet interim injunction against persons unknown is the exercise of an emergency jurisdiction which is provisional and strictly conditional. It was provisional because the party seeking the injunction would be expected to take all practical steps to identify the alleged wrongdoers so that they could have an opportunity to defend themselves. It was conditional on the Court being satisfied (1) that there was a sufficiently real and imminent risk of a tort being committed to justify quia timet relief; (2) that it was impossible to name the persons who were likely to commit the tort unless restrained; (3) that it was impossible to give effective notice of the injunction; and (4) that the terms of the injunction corresponded to the threatened tort and were not so wide that they prohibited lawful conduct. The claimants’ wish not to act in a heavy-handed or disproportionate way did not justify the failure to join individual defendants. On the contrary, where they could be identified it was essential to join them if any judgment or any sort of relief was to be granted against them. Judgment could not be granted against an entire class of persons unknown. If the persons were named, it would avoid the imposition of restrictions on the human rights of people against whom there was no evidence of actual or likely wrongdoing, restrictions which would be neither necessary nor proportionate.

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