THE HONOURABLE MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Free the MBR Beagles
“Whilst it is correct that, in Gammell , Sir Anthony Clarke MR stated that it was not ‘ necessary ’ to join such a person to the proceedings, that was because by her actions, she had already become one.”
86. Although there has been a large increase in the number of “Persons Unknown” injunctions that have been granted by the Courts in recent years, few claims have ever progressed to a trial. In consequence, the Court has not yet grappled with these issues, whether at first instance or at appellate level. In this case, Ms Pressick’s evidence contains very many examples of unknown individuals who are alleged to have done acts that would place them within one or more of the categories of “Persons Unknown” Defendants to this claim. If that evidence is accepted, by operation of the Gammell principle, all these individuals have now become defendants to the claim, even if they are presently unidentified. In ordinary civil litigation, a defendant to a claim would be required to file an Acknowledgement of Service and, if s/he was intending to defend the claim, a Defence. But the alternative service orders that the Claimants sought and obtained deems the Claim Form served 14 days after the relevant documents are displayed at the Wyton Site. In the vast majority of the “Persons Unknown” Defendants, this deemed service is simply a fiction. But the more serious consequence is that, as a result of operation of the Gammell principle and the deemed service of the Claim Form, a large number of people will have become defendants to the proceedings, but against whom no claim is advanced in the Particulars of Claim. How will such a claim be resolved? On one view, as the Claimants have brought the claim, if they fail to prove it against any individual defendant at trial, then the claim against that defendant would be dismissed. Ultimately, I suppose, these will be matters that will have to be resolved at the trial of the action. 87. Although I have rejected Ms Bolton’s first point, her second is correct. The result of the decision in the Contempt Application is that the Court has found that the Claimants had failed to comply with the terms of the alternative service order and, consequently, Ms McGivern was not given notice of the interim injunction order or the Claim Form. As such, although Ms McGivern did do acts that brought her within the definition of at least one of the categories of “Persons Unknown” Defendants, she has not become a defendant because she has not been served with the Claim Form. 88. The ramifications of this finding may go beyond Ms McGivern. In order to pursue a claim against “Persons Unknown”, unless exceptionally the Court dispenses with the requirement (CPR 6.16), the claimant must serve the Claim Form. For a claim against “Persons Unknown” defendants, that will require permission for alternative service of the Claim Form (CPR 6.15) and compliance with the terms of any order granting permission. If the Claimants have failed to comply with the alternative service order, then they will have failed to establish the Court’s jurisdiction over the relevant defendants. The Claimants may need to consider what steps they might now take to remedy any failure to comply with the alternative service order in respect of the Persons Unknown Defendants.
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