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New Court of Appeal guidance on injunctions against 'persons unknown'

Stop press:  The 2022 Court of Appeal case of London Borough of Barking and Dagenham v Persons Unknown has overturned one key aspect of this Canada Goose authority.  Please contact us or see our forthcoming briefing for information and advice.

Why is the Canada Goose appeal of interest?

Walker Morris has reported recently on key cases concerning how to deal with trespassers/protestors.  The law in this essential area continues to develop apace.  The Canada Goose [1] appeal is of interest because it provides the latest Court of Appeal guidance for land owners and occupiers concerned to obtain an injunction against ‘persons unknown’.

Procedural guidelines for injunctions against ‘persons unknown’

Building upon the principles and procedures highlighted in our earlier briefings, the Court of Appeal has now set out the following authoritative guidelines applicable to applications for injunctions against persons unknown:

  1. Persons unknown defendants must be people who have not been identified but are capable of being identified and served with 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 and also newcomers, that is to say people who in the future will join the protest and fall within the specific description of the persons unknown.
  2. The persons unknown must be defined in the originating injunction application by reference to their conduct which is alleged to be unlawful.
  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 [2]
  4. As in the case of the originating process itself, the defendants subject to the interim injunction must, in the continuation application, be individually named if known and identified or, if not, must be capable of being identified and served.
  5. 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.
  6. 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 act can be described in ordinary language without doing so.)
  7. The interim injunction should have clear geographical and temporal limits. It must be time limited because it is not a final injunction.
  8. A final injunction cannot be granted in a protester case against persons unknown who are not parties at the date of the final order – that is to say newcomers who have not by that time committed the prohibited acts and so do not fall within the description of the persons unknown and who have not been served with the claim form [3]. That does not mean to say that there is no scope for making persons unknown subject to a final injunction. That is perfectly legitimate provided the persons unknown are confined to those anonymous defendants who are identifiable (for example, from CCTV or body cameras or otherwise) as having committed the relevant unlawful acts prior to the date of the final order, and who have been served.

What happened in the particular case?

At first instance, the High Court refused to continue an injunction, which had previously been granted on an interim basis, against animal welfare protestors outside Canada Goose’s Regent Street store.  The High Court held that the terms of the proposed injunction, and the class of persons unknown against whom it was sought, were too wide. The court was therefore concerned that the proposed injunction would interfere with lawful protest and would impact innocent persons. The retailer also fell short procedurally, in that it had failed to properly serve the claim form, as well as the interim injunction order. Any one such error might prompt a court to refuse an injunction.

In dismissing Canada Goose’s appeal against that decision, the Court of Appeal has provided helpful guidance for claimants seeking to obtain injunctions against persons unknown.  It has also confirmed that, in many cases, it may not be appropriate to use the private jurisdiction of the civil courts to permanently control public demonstrations and disruption by a fluctuating body of potential defendants.  The case is therefore a cautionary reminder that the courts will not take the granting of an injunction against persons unknown lightly – not even where an earlier interim injunction has been ordered – and specialist legal advice will be required.


[1] [2020] EWCA Civ 303

[2] that is, anticipatory/pre-emptive relief

[3] There are some very limited circumstances in which a final injunction may be granted against the whole world (such as in the Venables and Thompson v News Group Newspapers case in which a wide-ranging and perpetual injunction was granted to protect the identities of two notorious murderers). Protester actions, like the present proceedings, do not fall within that exceptional category. The usual principle, which will apply, is that a final injunction operates only between the parties to the proceedings.