Tim Jones of the Lamb Building Civil Team discusses the impact of the recent case of London Borough of Barking and Dagenham and others v Persons Unknown and others [2021] EWHC 1201 (QB).

Introduction  

Suppose you work for a Registered Provider of Social Housing (“RP”) or a local authority. A group of people is committing anti-social behaviour (“ASB”) on your property, and you want to take legal action by applying for an injunction under Section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”), together with a  power of arrest under Section 4. However, you don’t know the names of the perpetrators.  What do you do?  

Historically, landlords have issued claims for injunctions against “persons unknown” so as to  enable the police to arrest anyone caught committing ASB against anyone within an area  defined by the injunction, or perhaps even for entering that area at all. This approach is  frequently adopted when the alleged perpetrators are travellers, or when a transient group of  perpetrators frequents a particular property. However, a recent High Court case has  highlighted limits on the landlord’s access to such a remedy. 

Persons unknown – procedure and issues

The problem

The obvious problem with proceedings against unnamed Defendants is that someone may end up incurring civil liability without their knowledge, much less the ability to respond to the allegations. In particular, injunctions against persons unknown, especially those to which a power of arrest is attached, carry a risk of the wrong people being arrested and/or committed to prison or fined for a breach. For example, if an injunction prohibits “persons unknown” from entering a particular area, then someone who had no prior knowledge of the injunction or the proceedings may inadvertently enter into the area only to find themselves arrested and sent to prison. However, if the name of a perpetrator of ASB is not known, then this can potentially leave a landlord without a remedy, particularly if the perpetrators are deliberately being uncooperative (e.g. by refusing to give names or giving “comically” false names). The law attempts to strike a balance between these competing considerations.

The Civil Procedure Rules

The salient points of the Civil Procedure Rules (“CPR”) for claims against persons unknown
are as follows:

• The claim form and every other statement of case must be headed with the title of the proceedings, which should [emphasis added] include, inter alia, the full name of each party.1
• The “full name” means, in each case where it is known, in the case of an individual, his
  full unabbreviated name and title by which he is known.2
• The court may authorise service by a method or at a place not otherwise permitted if there is a good reason3 (even retrospectively4). Such an application must be supported by evidence5 and specify, inter alia, the date on which the claim form is deemed served.6 The supporting evidence must state:7
  o The reason why an order is sought;
  o What alternative method or place is proposed or was used;
  o If applying retrospectively, when it was used; and
  o Why the applicant believes that the document is likely to reach the person
  to be served by the method or at the place proposed.

Historical case law

The courts have considered injunctions against persons unknown, sometimes in a traveller
context, on many occasions. A few (though by no means all) of the cases are set out below.

In Bloomsbury Publishing Group Plc v Newsgroup Newspapers Limited,8 the well-known author of the Harry Potter books, J.K. Rowling, discovered that an unknown person had obtained an as-yet unpublished version of a Harry Potter novel and sought an injunction to prohibit that person from publishing it. Bearing in mind the overriding objective, and mindful that the Practice Direction to Part 7 CPR used the word “should” as opposed to “must” when describing the procedure for naming the parties, the Court of Appeal found that the important factors were to describe the unnamed persons with sufficient precision so as to identify both those who were included and those who were not, and to give directions for service of the Claim Form, injunction and other papers. In practice, such directions are frequently based on the provisions for service on trespassers in possession claims against persons unknown, namely by attaching them to the main door of the property so that they are clearly visible and inserting the documents in a sealed transparent envelope addressed to “the occupiers” through the letter box or affixing them to stakes in clearly visible places in the land.9

In Hampshire Waste Services Limited v Persons Unknown,10 the High Court granted an injunction “restraining persons from entering or remaining without the claimant’s consent” on land described in the order in connection with an environmental protest which had been threatened.

In Joseph Boyd and another v Ineos Upstream Ltd and 9 others,11 Longmore LJ set out the following requirements for quia timet injunctions (i.e. in respect of harm that has not yet materialised) against persons unknown:

•  There must be a sufficiently real and imminent risk of a tort being committed to justify
  quia timet relief;
•  It is impossible to name the persons who are likely to commit the tort unless restrained;
• It is possible to give effective notice of the injunction and for the method of such notice
  to be set out in the order;
• The terms of the injunction must correspond to the threatened tort and not be so wide
  that they prohibit lawful conduct;
• The terms of the injunction must be sufficiently clear and precise as to enable persons
  potentially affected to know what they must not do; and
• The injunction should have clear geographical and temporal limits.

In Cameron v Liverpool Victoria Insurance,12 the Supreme Court considered the issue of service of the Claim Form on persons unknown, and found that it was not legitimate to issue a Claim Form to bring a claim against an unnamed Defendant if it was conceptually impossible to bring the claim to his/her attention. It was therefore an essential requirement of any form
of substituted service that the method used should reasonably be expected to bring the proceedings to the attention of the Defendant.

In 2020, Claimant landlords hit a stumbling block. In London Borough of Bromley v Persons Unknown,13 the Claimant local authority sought an injunction to prohibit encampment on all accessible spaces in the borough of Bromley. At first instance, the Judge found that such an injunction would constitute a disproportionate interference with the gypsy and traveller community’s rights to private and family life under Article 8 ECHR, due to the sheer width of the injunction sought, the lack of available camping sites and the cumulative effect of other injunctions leaving them with nowhere to go if every local authority sought them. She also found that the Claimant had breached its public sector equality duty under Section 149 of the Equality Act 2010 by failing to carry out an equality impact assessment or engage with gypsy and traveller families. The Court of Appeal upheld her decision and approved Longmore LJ’s approach from Ineos. Further, the Court provided, at the parties’ request, further guidance on the principles to be taken into account by local authorities considering applying for a quia timet injunction and where the proposed injunction is directed towards the gypsy and traveller community:

• Injunctions against persons unknown are exceptional measures because they tend to avoid the protections of adversarial litigation and Article 6 ECHR – after all, if you are not named as the Defendant in a case then it is highly unlikely that you will have the opportunity to address the allegations made against you.
• In order for proportionality (or an equilibrium) to be met in these cases, it is important that local authorities understand and respect the gypsy and traveller community’s culture, traditions and practices, in so far as those factors are capable of being realised in accordance with the rule of law. That will normally require some positive action on the part of the authority to consider the circumstances in which the Article 8 rights of the members of those communities are ‘lived rights’ i.e. are capable of being realised.
• The vulnerability and protected status of the Gypsy and Traveller community, as well as the integral role that the nomadic lifestyle plays as part of their ethnic identities, will be given weight in any assessment as to the proportionality of an injunction or eviction measure.
• The equitable doctrine of ‘clean hands’ may require local authorities to demonstrate that they have complied with their general obligations to provide sufficient accommodation and transit sites for the gypsy and traveller community.
• Common sense requires the court, when carrying out the proportionality exercise, to have careful regard to the cumulative effect of other injunctions granted against the gypsy and traveller community.

Canada Goose

One potential issue with injunctions against persons unknown is the question of whether they apply to “newcomers”. For example, what if persons A and B keep trespassing on my land, I do not know their names, I obtain an injunction against “persons unknown”, but then person C trespasses on my land? Is the injunction only enforceable against A and B – the individuals who originally trespassed, even though I do not know their names – or is it a contra mundum injunction, enforceable against the whole world, in which case C is also bound by it?

In Canada Goose UK Retail Limited v Persons Unknown,14 the Claimant clothing retail company (who sold clothing and other items made of animal fur and down) were concerned about harassment, trespass or nuisance from animal rights protesters. They sought an injunction against persons unknown prohibiting these acts. The Court of Appeal found that an interim quia timet injunction could be granted that would be effective against newcomers, but set out the following principles (“the Canada Goose principles”):

• The ‘persons unknown’ Defendants in the claim form are, by definition, people who have not been identified at the time of the commencement of the proceedings. If they are known and have been identified, they must be joined as individual Defendants to the proceedings. The ‘persons unknown’ Defendants must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary by alternative service such as can reasonably be expected to bring the proceedings to their attention. In principle, such persons include both anonymous
  Defendants who are identifiable at the time the proceedings commence but whose names are unknown and also newcomers, that is to say people who in the future will join the protest and fall within the description of the “persons unknown”.
• The ‘persons unknown’ must be defined in the originating process by reference to their
  conduct which is alleged to be unlawful.
• 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.
•  As in the case of the originating process itself, the Defendants subject to the interim injunction must be individually named if known and identified or, if not and described as ‘persons unknown’, must be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order.
• The prohibited acts must correspond to the threatened tort. They may include lawful conduct if, and only to the extent that, there is no other proportionate means of protecting the claimant’s rights.
• The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do. The prohibited acts must not, therefore, be described in terms of a legal cause of action, such as trespass or harassment or nuisance. They may be defined by reference to the defendant’s intention if that is strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant is capable of understanding and the intention is capable of proof without undue complexity. It is better practice, however, to formulate the injunction without reference to intention if the prohibited tortious act can be described in ordinary language without doing so.
• The interim injunction should have clear geographical and temporal limits. It must be time limited because it is an interim and not a final injunction.

However, the court found that a final injunction against persons unknown could only bind those who were parties to the proceedings at the date of the grant of the order. So A and B would be bound, but not C. The reason for the different position in respect of interim injunctions was that Claimants may be able to identify the individuals concerned by the time of the trial.

London Borough of Barking and Dagenham and others v Persons Unknown

At long last, we come to the case that forms the subject of this article.

The Claimant Local Authorities brought some 38 claims for injunctions against persons unknown. The issues in the case involved service of the Claim Forms, the descriptions of “persons unknown” and the bases of civil claims against persons unknown. The following findings were made:

• In many of the cohort cases, the Claimants had, in the court’s view, been somewhat blasé in their approach to service of the claim form. Many had not applied for substituted service at all, many had obtained defective orders purporting to grant it (for example, by failing to specify a deemed date of service), and many orders granting it had been made despite a lack of an application notice or evidence in support. Overall, there had been “a lack of consideration of the fundamental question whether the proposed method of alternative service of the Claim Form on “Persons Unknown” could reasonably be expected to bring the proceedings to the attention of those who it was sought to make Defendants to the civil claim.”
• The method of service utilised by the London Borough of Barking and Dagenham – namely, by displaying prominently the claim form on or around the various sites in respect of which an injunction was to be sought – could usually be expected to bring the proceedings to the attention of unknown Defendants, but not to those described in Canada Goose as “newcomers”.
• Going forward, courts would need to adopt a “vigilant and more rigorous” process when considering applications for substituted service of the Claim Form on “Persons Unknown”. Advocates would henceforth be expected to make the court aware of all relevant authorities and any arguments that could be raised by the absent party, as well as demonstrate (with reference to evidence) how the proposed method of alternative service on persons unknown could reasonably be expected to bring the proceedings to the attention of all of those who were sought to be made Defendants. If it could not reasonably be expected to bring the proceedings to the attention of all of the Defendants as per Cameron then an order for substituted service should not be granted.
• Many Claimants had failed to satisfy the Canada Goose requirement that the “Persons Unknown” were defined by reference to the conduct alleged to be unlawful. In some cases, the description in the injunction was different to that in the Claim Form.
• The court retained jurisdiction to review injunctions that had already been granted.
• If, by the time a final order falls to be made, the Claimant cannot identify anyone in the category of “persons unknown”, then the final injunction order binds nobody.
• While the court had the jurisdiction to grant contra mundum injunctions, it should only be exercised in cases where it was the only way to protect an engaged Convention right and the refusal to grant it would put the court in breach of Article 6. Otherwise, the court was effectively moving into the role of the legislature via a combination of injunctions and the court’s powers of enforcement. Traveller injunctions plainly did not meet this threshold.

Commentary

In an era when local authorities and RPs are asked to take on more responsibility in dealing with various forms of ASB, whilst also endeavouring to comply with their human rights and Equality Act duties, the Court of Appeal’s decision is a heavy blow.
My practical recommendations for landlords are as follows:

• Claimants seeking substituted service should ensure they make fully CPR-compliant applications supported by evidence, including cogent explanations of why they are seeking such an order and why they believe the proposed method of service would bring (or would have brought) the Claim Form to the attention of the Defendants.
• Claimants should identify anonymous Defendants as much as possible, firstly with reference to the conduct they are alleged to be committing and secondly with reference to other qualities known about them; for example, even a nickname is better than nothing.
• Claimants should work in partnership with the police and residents in order to gather more specifics as to precisely who is committing (or threatening to commit) what form of ASB. Such efforts should be documented and explained in witness statements in support of injunctions and substituted service applications.
• In cases where an injunction would have been sought against “persons unknown” to prevent them from entering premises, would-be Claimants should instead consider applying for a closure order under Section 80 of the 2014 Act. This has the advantage of reversing the problem with using injunctions to achieve the same goal – rather than needing to identify those who are not allowed in, the closure order applies to everyone unless it specifies that they are not allowed in. As an aside, it also has the advantage of automatically triggering the mandatory ground for possession.
• RPs cannot apply for closure orders, but they may wish to engage in further partnership work in order to procure them.
• In other cases, local authorities may wish to make greater use of public spaces protection orders under Section 59 of the 2014 Act.

Written by Tim Jones. All views are my own. The information set out herein is for informational purposes only. Always seek independent legal advice in relation to your case.

1 PD7A, paragraph 4.1; PD16, paragraph 2.6.
2 PD16, paragraph 2.6(a).
3 CPR 6.15(1).
4 CPR 6.15(2).
5 CPR 6.15(3)(a).
6 CPR 6.15(4).
7 PD6A, paragraph 9.
8 [2003] 1 W.L.R. 1633.
9 CPR 55.6.
10 [2004] Env. L.R. 9.
11 [2019] EWCA Civ 515.
12 [2019] 1 WLR 1471.
13 [2020] EWCA Civ 12.
14 [2020] EWCA Civ 303.