Injunctions Against "Persons Unknown" ' Uncertainty Ahead

• Published date: 26 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Cooley LLP
• Author: Andrew Love and Laurence Harris

Injunctions against 'persons unknown' have increased in popularity in recent years; however, the judgment in MBR Acres Ltd and others v McGivern [2022] EWHC 2072 has cast doubt on how useful these injunctions will be in future. Following this judgment, it may be more difficult for parties with the benefit of such an injunction to assess whether or not an unknown person is bound by the injunction and it can be enforced against them.

History

These injunctions were popularized by property owners as a tool to prevent squatters and trespassers. The people the injunctions were supposed to catch were individuals that were easily identifiable through their conduct but who could not easily be named. The use of these injunctions has increased in the context of online fraud and defamation as well as in response to data hacking - i.e. in areas where it is possible for someone acting anonymously through the internet to cause serious harm to another person.

An obvious difficulty with an order made against an unknown person, is how that order is properly served. This is typically overcome through service by an alternative method under CPR 6.15. In order to approve the proposed method of alternative service, the court will have to be satisfied the method could 'reasonably be expected to bring the proceedings to the attention of the defendant'¹.

Facts of the case

MBR Acres, a company running a facility breeding dogs to be used in animal testing applied for, and was granted, an injunction to prevent protesters coming within a certain distance of its facilities or from blocking access to them. The injunction applied to several named protesters and three categories of unnamed defendants, basically any future protesters that entered or blocked access to the facilities without permission. The injunction was granted and alternative means of service for the unknown defendants were approved. The Claimants were required to attach a copy of the application notice, the order granting the injunction and a covering letter to a notice board outside the Claimant's facility. The covering letter had to include a web address for a Dropbox folder and explain to the reader they could access the documents attached to the letter along with the evidence filed in support of the application including the skeleton argument and the note of the hearing by going to the relevant Dropbox page.

Ms McGivern was a solicitor who attended the site to provide legal advice to the protestors. In so doing, Ms...