The end of a trend for injunctions against persons unknown?

The High Court has refused to continue an injunction curbing the actions of protesters outside a clothing store.

In recent years many injunctions have been sought against persons unknown to restrain the actions of trespassers and protestors. Frequently, these are sought on a quia timet basis, meaning in advance of any wrong being done. The injunction might be interim - pending a full hearing – or final and indefinite.

In all these cases it is essential to identify exactly who should be made the subject of the injunction and how to distinguish between those persons acting legitimately and those breaking the law. In the recent case of Canada Goose v Persons Unknown, the court emphasised that great care is needed in making this distinction.

Facts

The case concerned a store in Regent Street, London, selling coats made from fur and other animal products. From its opening, the store became a focus of protests which included leafleting, photographing and videoing store staff, obstructing the road and entrance to the store and painting and spraying the outside of it. In November 2017 the store’s operator sought an injunction against persons unknown to prevent further alleged acts of harassment, trespass and/or nuisance arising from these protests.

Without notice being given to any intended defendants, the claimants were immediately granted an interim injunction 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”. After issue, the claim was said to have been served on over 300 people.

The terms of the injunction were modified slightly at a hearing in December 2017, and the People for the Ethical Treatment of Animals Foundation (PETA) were added as second defendant.  In November 2018, the claimants sought summary judgement against the defendants, applying for the injunction to become final.

Decision

The High Court refused to grant summary judgment and ordered that the interim injunction be lifted.

Following the decision in Boyd v Ineos Upstream Ltd [2019] 4 WLR 100 the court confirmed the requirements for an injunction against persons unknown and, with these in mind, found that:

• The fundamental human right to freedom of speech required the court to be satisfied that an injunction was an appropriate and proportionate remedy in the circumstances
• The injunction had been handed to numerous people but had not been properly served on anyone, meaning any potential defendants (including PETA) had been deprived of the opportunity to raise a defence
• The wide definition of protestor in the injunction meant it covered even people standing silently outside the store holding a placard. Such lawful behavior was not sufficiently serious to warrant the potentially criminal penalties that would follow a breach of the injunction and there was no evidence that PETA had committed any wrong at all
• The terms of the injunction were not clear enough as to what was being prohibited, but effectively left it ‘to the lay person to make that difficult assessment him/herself, on pain of imprisonment if s/he gets it wrong’. This was a disproportionate interference with the right to freedom of expression
• An injunction against persons unknown was inappropriate in these circumstances, especially when other remedies (such as police arrest for violent or criminal activity) were available

Permission to appeal to the Supreme Court has been granted. In the meantime, the discharge of the interim injunction has been stayed meaning it will remain in force pending determination of any appeal.

Comment

This case provides reassurance for those seeking to exercise their lawful right to protest. It can also be read as a how to guide for those wanting to secure an injunction against persons unknown, serving as a reminder that the terms of any proposed injunction need to be specific in their application and directed at persons capable of being clearly identified.

Canada Goose UK Retail Ltd v Persons Unknown and another [2019] EWHC 2459 (QB)