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Cases

Injunctions against protesters: Court of Appeal guidance … and the limits of the jurisdiction

05.03.2020

In Canada Goose v Persons Unknown [2020] EWCA Civ 303, the Court of Appeal has today provided further guidance on the appropriate procedures where a claimant seeks injunctive relief to protect its business interests against public protests. It has also noted the limitations of private law remedies for claimants who seek to invoke the civil jurisdiction of the courts as a means of permanently controlling ongoing public demonstrations by a continually fluctuating body of protesters.

Canada Goose is a well-known clothing retailer, some of whose products contain animal fur and/or down. It opened its first flagship European store on Regent Street, London W1 in November 2017. In the 16 days following, there were 8 protests on the pavement from animal rights protesters. These included a number of mass protests. In one, some 400 protestors attended, surrounded and blocked the entrance, resulting in the Store's effective closure for 4 hours. In another, some 300 protestors attended to similar effect at the store entrance, so that customers wishing to go in and out had to navigate through a tight 'funnel' of protesters. Seventy police officers attended. In a third, some 100 protesters attended, prior to which the Store had been 'locked down' on police advice.

On each of those occasions, a series of tortious acts were perpetrated. These included the private nuisance of interfering with Canada Goose's right, as owner of land adjoining the highway, to access the highway, and the public nuisance of obstructing or hindering free passage along the highway which caused Canada Goose damage which was substantial and greater in degree than any suffered by the general public.

Canada Goose therefore sought and obtained High Court quia timet interim injunctive relief to limit (but not prohibit) future protest. The claim was brought against "Persons unknown who are protestors against the manufacture and sale of clothing made of or containing animal products and against the sale of such clothing at Canada Goose, 244 Regent Street, London W1B 3BR".

The terms of its December 2017 interim injunction included, in particular, two exclusion zones on the pavement outside its Regent Street frontage:

  • The Inner Exclusion Zone, extending out from the store frontage for 2.5 metres, within which all protest was prohibited.
  • The Outer Exclusion Zone, extending a further 5 metres outwards, within which no more than 12 protesters could protest at any one time.

In January 2019 Canada Goose applied for summary judgment against these "Persons Unknown". It had not joined any named defendants to the claim although, by that time, it knew the names of 37 of the protesters and had identified up to 121 individuals by photograph and description.

Canada Goose accepted that the description of the defendant in the Claim Form was overly broad, in that it included persons protesting lawfully. It sought to rely on a narrower description, being: "Persons who are present at and in the vicinity of 244 Regent Street, London W1B 3BR and are protesting against the manufacture and/or supply and/or sale of clothing made of or containing animal products by Canada Goose UK Retail Limited and are involved in any of the acts prohibited by the terms of this order". The terms of the draft order included the exclusion zone provisions.

In a long and substantial judgment, Nicklin J refused the application for summary judgment for a number of reasons [2019] EWHC 2459 (QB). These included that the inclusion of an exclusion zone in an injunction was impermissible as it restrained conduct that was potentially lawful.

In its judgment today the Court of Appeal has agreed with the judge's conclusions and dismissed Canada Goose's appeal. The December 2017 interim injunction is discharged.
The judgment of the Court (Sir Terence Etherton MR, David Richards and Coulson LJJ) is significant for a number of reasons.

Suing persons unknown who are not yet in existence

First, the Court re-affirmed its own decision, in the anti-fracking case of Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515, that there is no conceptual or legal prohibition on suing persons unknown who are not currently in existence but will come into existence when they commit the prohibited tort. It termed them "Newcomers".

In Ineos, for example, the first five defendants had been described as "Persons unknown" followed by an unlawful activity, such as "entering or remaining without the consent of the claimants on [specified] land".

The Court re-affirmed that an individual protester would therefore become a defendant to the claim if, having been duly served with the claim form – ordinarily by virtue of an appropriate order for alternative service under CPR 6.15 – he committed the unlawful activity in question. This was in accordance with South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429.

Re-consideration of the Ineos 'requirements'

Second, the Court re-considered Longmore LJ's "tentatively frame[d]" requirements necessary for the grant of an injunction against persons so described, from Ineos at [34], being that:

"(1) there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief; (2) it is impossible to name the persons who are likely to commit the tort unless restrained; (3) it is possible to give effective notice of the injunction and for the method of such notice to be set out in the order; (4) the terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct; (5) 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 (6) the injunction should have clear geographical and temporal limits."

As to requirement (4), the Court recognised that in Ineos the earlier Court of Appeal cases of Hubbard v Pitt [1976] QB 142 and Burris v Azdani [1995] 1 WLR 1372 had not been cited. In each of those cases the court had approved the inclusion of an exclusion zone in an injunction restraining against threatened tortious conduct.

It held, accordingly, that requirement (4) was to be modified "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" [82(5)] (emphasis added).

As to requirement (5), the Court noted that in Ineos, Longmore LJ had expressed the view that it was wrong to include in an order any reference to the subjective intention of the defendant. This view had then been reconsidered by Leggatt LJ in Cuadrilla Bowland Limited v Persons Unknown [2020] EWCA Civ 9 at [65-68]. The Court accepted what Leggatt LJ had said in Cuadrilla about the permissibility in principle of referring to the defendant's intention in an injunction when that is done "in non-technical language which a defendant is capable of understanding and the intention is capable of proof without undue complexity." [81]. However, it went on to say that it was "better practice" to formulate the injunction without reference to intention if the prohibited tortious act can be described in ordinary language without doing so. It noted that this can often be done by reference to the effect of an action of the defendant rather than the intention with which it is done.

Procedural Guidelines for suing "persons unknown"

Third, the Court set out the following procedural guidelines applicable to proceedings for interim relief against "persons unknown" in protester cases like Canada Goose (at [82]):

"(1) 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 it to say people who in the future will join the protest and fall within the description of the "persons unknown".

(2) The "persons unknown" must be defined in the originating process 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 relief.

(4) 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.

(5) The prohibited acts must correspond to the threatened tort. They may include lawful conduct if, and only to the extent that, there are 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 tortious 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 an interim and not a final injunction."

Final injunctions against "persons unknown"

Finally, the Court held that 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 [89].

In so holding, the Court rejected the submission that the Court should regard protester actions as one of those exceptional cases where a final injunction may be granted against the whole world: see Venables v News Group Newspapers Ltd [2001] Fam 430.

Comment

The clarification by the Court of Appeal of requirement (4) in Ineos is to be welcomed. In a case of mass public protest, it will almost invariably be the case that obstruction of the highway is committed by many persons acting together, the vast majority of whom cannot be identified. If the Court does not have power, in an appropriate case and respecting all Convention rights engaged, to order some form of exclusion zone to protect a claimant's business, it is hard to see what a claimant can do – save for reliance on the police. An injunction against an individual preventing them from "obstructing" an entrance is not much good if the obstruction results from scores of persons acting together.

Similarly, the procedural guidance of the Court of Appeal will be helpful to practitioners. The judgment also reinforces the importance of claimants taking care and being precise when describing defendants and the acts which are sought to be prevented. So too does it highlight the importance of thinking carefully about what provisions for alternative service of the claim form and response pack are needed, as well as service of any interim injunction.

However, claimants may find what the Court has to say about the non-availability of final relief against 'persons unknown' problematic. The effect of this holding is, as Canada Goose argued (but is not expressly considered in the Court's judgment) that if an interim injunction is made against Newcomers, the interim injunction then does its job and there is compliance with its terms, there will never be any defendants to the claim. Therefore, any claimant seeking a final injunction will be bound to fail at trial, and compelled to start all over again if – the interim injunction having been lifted – protests re-commence. The same practical consequence emerges even in cases where a few defendants have come into existence by trial: final relief against the "few" is not much good when it is the "many" who threaten the claimant's rights.

Indeed, it may be thought somewhat counter-intuitive that a claimant who has correctly invoked the court's jurisdiction in protection of its rights and has obtained an interim order which is complied with, stands to lose it because of the very act of compliance (which compliance would not have existed but for the fact of the order).

For its part, the Court recognised the limitations of the civil law in such a case. As it said:

"93. Canada Goose's problem is that it seeks to invoke the civil jurisdiction of the courts as a means of permanently controlling ongoing public demonstrations by a continually fluctuating body of protesters. It wishes to use remedies in private litigation in effect to prevent what is sees as public disorder. Private law remedies are not well suited to such a task."

It may be thought that English civil law should so provide and there should be appropriate remedies in protester cases of this sort. Otherwise, and for some at least, the Law may be seen to be an Ass. Or, in this case, a rather disappointed Goose...

Ranjit Bhose QC was instructed on the appeal for Canada Goose, leading Michael Buckpitt of Tanfield Chambers. They were instructed by Paul Hayes of Lewis Silkin.