MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
possible, in non-technical and readily comprehensible language which a person served with or given notice of the order is capable of understanding without recourse to professional legal advisers.
(4) Other consequences of contra mundum litigation 353. There are further implications of the move to contra mundum orders. In despatching the Gammell principle as the jurisdictional basis to bind newcomers, the Supreme Court did away with the notion that the people bound by a ‘newcomer’ injunction are parties to the litigation. They are not bound as a party; they are bound because the injunction is framed as a prohibition generally on the identified act(s) that, subject to notice of the injunction, binds everyone: “ anyone who knowingly breaches the injunction is liable to be held in contempt, whether or not they have been served with the proceedings ”: [132]. 354. The Supreme Court did not really address the issue of service of a Claim Form in a wholly contra mundum claim (i.e. one in which there are no named defendants). All that was said was [56]:
“Conventional methods of service may be impractical where defendants cannot be identified. However, alternative methods of service can be permitted under CPR r 6.15. In exceptional circumstances (for example, where the defendant has deliberately avoided identification and substituted service is impractical), the court has the power to dispense with service, under CPR r 6.16.”
355. In litigation brought solely contra mundum there can be no expectation or requirement to serve the Claim Form on the putative defendant. In contra mundum litigation, “ there is, in reality no defendant ”: Wolverhampton [115]. There is therefore no one upon whom the Claim Form can be served. If, exceptionally, the Court is satisfied that it is appropriate to proceed to without a defendant, the Court can dispense with the service of the Claim Form under CPR 6.16. That was the course adopted in In the matter of the persons formerly known as Winch [2021] EMLR 20 [31]. 356. The absence of any defendant(s) also means that, whilst the Court must ensure that the terms of any contra mundum injunction are (a) clear as to what conduct is prohibited (see [352] above), and (b) compellingly shown to be necessary, there is now no need carefully to define the category of “Persons Unknown” who are to be defendants to the claim; there are no defendants in such a claim. 357. I note that the Supreme Court said the following about the description of those who are to be restrained by a contra mundum ‘newcomer’ injunction: [132]… Although the persons enjoined by a newcomer injunction should be described as precisely as may be possible in the circumstances, they potentially embrace the whole of humanity… [221] The actual or intended respondents to the application must be defined as precisely as possible. In so far as it is possible actually to identify persons to whom the order is directed (and who will be enjoined by its terms) by name or in some other way, as Lord Sumption explained in Cameron [2019] 1 WLR 1471 , the local authority ought to do so. The fact that a precautionary injunction is also sought against newcomers or other persons unknown is not of itself a justification for failing properly to identify these
160
Made with FlippingBook interactive PDF creator