High Court Judgment Template

Sumption cited with approval the case of Brett Wilson llp v Persons Unknown [2015] EWHC 2628 (QB); [2016] 4 WLR 69, as illustrating circumstances in which alternative service was legitimate because “it is possible to locate or communicate with the defendant and to identify him as the person described in the claim form” (para 15). That was a case concerned with online defamation. The defendants were described as persons unknown, responsible for the operation of the website on which the defamatory statements were published. Alternative service was effected by sending the claim form to email addresses used by the website owners, who were providers of a proxy registration service (ie they were registered as the owners of the domain name and licensed its operation by third parties, so that those third parties could not be identified from the publicly accessible database of domain owners). Yet the identities of the defendants were just as unknown as that of the driver in Cameron, and remained so after service had been effected: it remained impossible to identify any individuals as the persons described in the claim form . The alternative service was acceptable not because the defendants could be identified, but because, as the judge stated (para 16), it was reasonable to infer that emails sent to the addresses in question had come to their attention. 117. We also have difficulty in fitting the unnamed defendants in Bloomsbury within Lord Sumption’s class of identifiable persons who in due course could be served. It is true that they would have had to identify themselves as the persons referred to if they had sought to do the prohibited act. But if they learned of the injunction and decided to obey it, they would be no more likely to be identified for service than the hit and run driver in Cameron. The Bloomsbury case also illustrates the somewhat unstable nature of Lord Sumption’s distinction between anonymous and unidentifiable defendants. Since the unnamed defendants in Bloomsbury were unidentifiable at the time when the claim was commenced and the injunction was granted, one would have thought that the case fell into Lord Sumption’s second category. But the fact that the unnamed defendants would have had to identify themselves as the persons in possession of the book if (but only if) they disobeyed the injunction seems to have moved the case into the first category. This implies that it is too absolutist to say that a claimant can never sue persons unknown unless they are identifiable at the time the claim form is issued. For these reasons also, it seems to us that the classification of cases as falling into one or other of Lord Sumption’s categories (or into a third category, as suggested by the Court of Appeal in Canada Goose, para 63, and in the present case, para 35) may be a distraction from the fundamental question of whether service on the defendant can in practice be effected so as to bring the proceedings to his or her notice. 118. We also note that Lord Sumption’s description of Bloomsbury and Gammell as cases concerned with interim injunctions was influential in the later case of Canada Goose . It is true that the order made in Bloomsbury was not, in form, a final order, but it was in substance equivalent to a final order: it bound those unknown persons for the entirety of the only relevant period, which was the period leading up to the publication of the book. As for Gammell, the reasoning did not depend on whether the injunctions were interim or final in nature. The order in Ms Gammell’s case was interim (“until trial

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