THE HONOURABLE MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- McGivern
Cuciurean was not apparently cited to, or considered by, the Court of Appeal in Barking . 71. Before I leave this point, I would merely note that the difficulties with the operation of the Gammell principle in this area is not confined to the issue of liability for contempt. During the hearing, I raised the position of Ms McGivern as now being a defendant to the proceedings. Having, by her actions, brought herself within one or more of the categories of “Persons Unknown”, Ms McGivern had become a defendant to the proceedings. Whilst it is correct that, in Gammell , Sir Anthony Clarke MR stated that it was not “ necessary ” to join such a person as a defendant to the proceedings, that was because, by her actions, she had already become one. 72. But how is this principle to work in practice? In Gammell , the underlying claim was simple. That will not always be the case, and this case rather demonstrates how complex the underlying proceedings in which the “Persons Unknown” injunction has been granted can become. The direct question I asked of Ms Bolton was whether the Claimants intended now to pursue a claim against Ms McGivern. I received no answer. 73. If they do, the Particulars of Claim will need amendment so that Ms McGivern will know what claim(s) are being made, and relief sought, against her. Thereafter, Ms McGivern will need to file an Acknowledgement of Service and, if she intends to defend the claim, a Defence. If the Claimants do not intend to proceed with a claim against Ms McGivern, how is her position as a defendant to the proceedings to be resolved? If no claim is to be pursued, must the Claimants serve a notice of discontinuance? And if they do, does Ms McGivern remain bound by the “Persons Unknown” injunction on the basis of the historic acts that put her into one of more of the categories of “Persons Unknown”? All of these issues remain to be resolved. 74. Finally, under CPR 6.15(4)(c), an order granting permission for alternative service of the Claim Form is required to provide the period for filing an Acknowledgement of Service, admission or Defence (see [10] above). How that is to be achieved when the alternative service order is supposed to apply to newcomers is unclear and appears to me to be unworkable. These perhaps are some of the consequences of moving civil litigation out of its established and conventional bounds and into the uncertain territory of prohibitions by injunction that are potentially binding on the whole world. 75. Mr Underwood QC submitted that I should dismiss the contempt application for two reasons. First, the Claimants had failed to comply with the alternative service order. As such, they could not establish, to the criminal standard that the injunction order had been properly served (see Cuciurean [58]). Second, I should accept Ms McGivern’s evidence that she knew nothing of the injunction order and that either the contempt application should be dismissed as frivolous, or, as a wholly technical breach, no penalty should be imposed. 76. The first of these grounds needs some further explanation. Mr Underwood’s argument is as follows: i) The requirements for alternative service of the injunction order were set out in Paragraph 7 of the order (see [17] above).
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