Recent Issues in Person Unknown cases

By Adam Speker KC

Publisher: Adam Speker
Date of Publication: 4 Jun 2018

In media and communications litigation, one party name has become increasingly common. Not News Group or Associated or even Google. It is the party known as Person or Persons Unknown.

Of course, there is no single unknown person. The use of the term is a device, deriving from Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch); [2003] 1 WLR 1633, to identify by description a defendant alleged to be invading a claimant’s rights. In the Bloomsbury case, the unknown person was an individual who had stolen an advance copy of a Harry Potter novel which had come into the possession of The Sun. In others it has been paparazzi photographers, blackmailers or cyber hackers.

At the Conference5RB 2018 on Wednesday 26 September, one of our workshops will look at one-sided media litigation including cases involving persons unknown. This article identifies some of the issues thrown up by recent cases.

To commence a claim against Persons Unknown, those individual(s) said to be responsible for the conduct must exist and the description of those person(s) must be sufficiently certain to identify who is included within it and who is not (X & Y [2007] EMLR 90 at [68]-[70]; Brett Wilson [2016] 4 WLR 69 at [8]). Hence, case names tend to be as long and descriptive as a headline on Mailonline e.g. LJY v The Person(s) Unknown responsible for the demand for money contained in a letter received by the claimant’s representatives on 5 December 2017. Here they are shortened to just the name of the claimant.

As with all injunctions, an applicant must consider whether to put the respondent on notice of the application, and, if so, how. Section 12 of the Human Rights Act 1998 prohibits a court from granting relief which infringes a respondent’s freedom of expression if the respondent is neither present nor represented unless ‘the applicant has taken all practicable steps to notify the respondent; or there are compelling reasons why the respondent should not be notified.’ This can obviously prove problematic if the respondent’s identity is unknown.

In Middleton [2016] EWHC 2354 (QB), Whipple J held that it was a compelling reason that the claimant did not know the identity of the respondent who was believed to be in possession of the applicant’s Icloud account containing private photographs: [17]. That reasoning will not apply in all cases involving respondents whose identities are unknown. In Brett Wilson, Warby J (at [16]) considered that there was no good reason not to notify the respondents since it could be done via email. In cases involving alleged harassment by paparazzi, where there is unlikely to be concerns about tipping-off, notice could be given by placing a copy of the application somewhere it can be seen by paparazzi e.g. outside the house of the claimant. That happened in Kerner v WX [2015] EWHC 128 and 178 (QB).

Thought will also need to be given to whether to notify in advance third parties who may be served with the order. In Terry [2010] EMLR 16, Tugendhat J considered it was inappropriate to seek injunctive relief against an unknown individual alone where a media organisation had an existing interest in the subject-matter: [114]-[118]. The media organisation should have been put on notice. In GYH [2017] EWHC 3360 the applicant stated that his intention was to serve the order on third party internet platforms hosting the offending material. Warby J held that he was satisfied ‘narrowly’ that there was a risk that notification to the internet platforms in advance of the hearing would lead to an escalation of the harassing conduct complained about.

At the hearing, consideration will need to be given to whether to seek any derogations from open justice. Even if no-one is present in court including the respondent, unless orders are made the hearing is still in open court and the privacy or confidentiality of the information can be lost. Orders to protect the information can be made in a number of ways and any derogations will have to be tailored to the nature of the claim and the information in issue.

In NPV v QEL [2018] EWHC 703, Nicklin J ordered a private hearing of a privacy and harassment application involving blackmail (see [16]) before giving a public judgment. Likewise, in PML [2018] EWHC 838, where Nicklin J explained in a public judgment at [14]:

There is a powerful (if not overwhelming) case that this Defendant is blackmailing the Claimant. Police investigations were underway and at the hearing I had necessarily to hear evidence and submissions relating to the activities of the Defendant and the data that was stolen. The purpose of these proceedings would have been frustrated (or at least harmed) had the hearing been conducted in public.

In LJY Warby J heard in open court an application for an interim injunction involving blackmail but anonymised the claimant and imposed a s4(2) Contempt of Court Act 1981 postponement order meaning that the defendant, who was not present, could not be notified of the hearing before any injunction prohibiting him naming the claimant was granted.

In PML and NPV, Nicklin J made orders, known as ‘self-identification orders’, for the unknown respondent to identify him or herself and provide an address for service. As the Judge explained in PML at [17], such an order had proved successful in NPV and was a powerful tool:

17 ….. Of course, a defendant may disobey the Court’s order and not comply with a self-identification order as well as the non-disclosure order. But it cannot be assumed that all defendants will choose defiance. Few defendants can remain confident that they will ultimately manage to evade identification. If they fail, punishment for contempt of court would then loom large. …

Another matter that needs to be addressed at the hearing is how to serve an injunction on the unknown defendant. The courts expect steps to be taken to bring the injunction to the notice of the defendants and to serve them with it and are willing to grant orders for alternative service, where appropriate.

In Clarkson [2018] EWHC 417 (at [11]) and PML (at [6]), cases involving blackmail threats following cyber breaches, the courts allowed the claimants to serve the injunction on the respondent using the email addresses he had used to contact and threaten them. A similar order was made in Brett Wilson. In NPV (at [28(iii)]), Nicklin J allowed service of the order by text message.

If a means of service can be found, an applicant must consider which documents to serve on a respondent. Ordinarily, an applicant must provide a respondent, who was not present at the hearing, with not only the injunction order but all the documents put before the court, as well as a note of the hearing and any judgment. In Clarkson and PML, the applicants applied to withhold certain documents from the respondent unless and until he identified himself and provided an address for service. It was argued that since the individual was unknown and was seeking to blackmail the applicants, to send the evidence relied upon to the hacker may lead to its misuse. Also particularising the confidential information stolen could provide the hacker with valuable information about which documents or categories of documents were considered to be particularly sensitive by the applicant.

In Clarkson, Teare J acceded to the company’s application in this respect and Warby J extended the order on the return date. Nicklin J made a similar order in PML. Warby J said,

There is one derogation which is non‑standard and that is a restriction on the service on the defendant of certain information and documents. Paragraph 5 of the draft order provides that certain specified information or documents will not be provided to the defendant at this time, they will be provided if and when he provides his full name and an address for service to the claimant’s solicitors. This is a departure from the standard provisions required by CPR Practice Direction 25(a) in para.5.1(2). Those provisions ordinarily require an applicant to undertake to serve on the respondent the application notice, evidence in support and any order made as soon as practicable. 

 I have been referred to the well‑known authorities of WEA Records v Visions Channel 4 Ltd. [1983] 1 WLR 721 at 724 and Kelly v BBC [2001] Fam 59 at 94 to 95 (Munby J).  Those cases make it clear that the court will not countenance attempts by parties to put evidence before the court on which a court is invited to rely if the claimant is not prepared for that evidence to be provided to the defendant or respondent.  In WEA Records, Sir John Donaldson, Master of the Rolls, made clear that if a party does not wish information to be provided to the respondent, that information should not be put before the judge who is making the decision. 

 The present case is, however, different.  It is not the claimant’s position that they are unprepared to show the evidence to the defendant, their position is that the defendant should not see that information unless he provides his name and an address for service.  That is, in my judgment, a highly material distinction.  If the defendant wishes to challenge the relief that’s been granted to the claimant, the means by which he can do so is in his own hands.  He can identify himself, give an address for service and thereupon he will obtain the necessary evidence.  I therefore consider, as did Mr Justice Teare, that that is an appropriate derogation from open justice.

Such orders will be exceptional and whilst it may be sufficient, at an early stage, to refer to the information in general terms to a blackmailer, that course may not suffice if the order has to be served on third parties.

In cases involving persons unknown, where an injunction has been granted, the court has required directions to be included in the order on the return date to ensure that the action proceeds to a conclusion. These directions usually require the applicant to apply for default judgment if no acknowledgement of service or defence is forthcoming: see e.g. LJY at [48]-[56] and PML at [17]-[19]. In PML, Nicklin J also gave permission to serve out of the jurisdiction if that proved necessary: [18]. In LJY and Clarkson Warby J included in the directions a clause requiring the applicant, if it wished to obtain any wider injunctive relief against a non-party served with the order, to file an application notice and evidence in support, and to serve such documents on a non-party, once it had given an irrevocable undertaking to the court not to disclose any evidence which is asserted to be confidential.

Finally, if no acknowledgement of service is served and an application for default judgment is made, the courts have said that these are the types of applications which are suitable to be dealt with on paper. In Clarkson, Warby J explained,

…there is nobody defending the claim who could benefit from the advantages that a hearing often brings with it for the litigant.

In conclusion, whilst the persons unknown jurisdiction has existed since 1998, it can be seen that new issues arise for determination regularly. As explained above, we will look at issues of this kind and others relating to one-sided litigation at the Conference5RB 2018 on 26 September.

5RB’s Adam Speker acted for the applicants in Clarkson, PML and NPV (instructed by Pinsent Masons, Taylor Wessing and Carter-Ruck respectively).


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