Fracking Fracas – English Court Of Appeal Gives Guidance On Injunctions Against Persons Unknown

When can the courts issue injunctions against people who cannot be identified but who they suspect may be intending to engage in a wrong?

The English Court of Appeal in Joseph Boyd & Ors v Ineos Upstream Limited & Ors [2019] EWCA Civ 515 has given important guidance on when the Court may issue injunctions against persons unknown to prevent the commission of a wrong. In that case, injunctions were granted at first instance against four out of five groups of defendants, described as "persons unknown" and thought likely to become involved in unlawful protests against "fracking" (shale gas exploration) at sites selected by the Ineos Group of companies. An appeal was brought by interested persons and groups including the lobbying group 'Friends of the Earth', who, though not the subject of the injunctions, had been permitted to intervene in the action.

A wizard wheeze

Mr Justice Longmore, giving judgment on behalf of the Court of Appeal (Lord Justice David Richards and Lord Justice Leggatt concurring), explained that since the advent of the Civil Procedure Rules, there has been no requirement to name a defendant in a claim form and that orders had been made against "persons unknown" in appropriate cases.

The first such case was the well-known 'Harry Potter' case Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] 1 WLR 1633, in which unknown persons had illicitly obtained advance copies of "Harry Potter and the Order of the Phoenix" and were trying to sell them to newspapers. Sir Andrew Morrit V-C made an order against persons who had offered various publishers copies of the book and persons who had physical possession of a copy of it.

Counsel for the respondents cited Lord Sumption's comments in the Supreme Court judgment Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, to suggest an injunction was inappropriate. In that case, Lord Sumption distinguished between "anonymous defendants who are identifiable but whose names are unknown" and "anonymous defendants who cannot even be identified", such as most 'hit and run' drivers. Those in the second category could not be sued because to do so would be contrary to the fundamental principle that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as would enable him to be heard.

Mr Justice Longmore however thought that Lord Sumption's comments may have been taken out of context. It was "too absolutist" to say that a...