Injunctions against “persons unknown” – uncertainty ahead

Injunctions against “persons unknown” have increased in popularity in recent years; however, the judgment in MBR Acres Ltd and others v McGivern [2022] EWHC 2072 has cast doubt on how useful these injunctions will be in future. Following this judgment, it may be more difficult for parties with the benefit of such an injunction to assess whether or not an unknown person is bound by the injunction and it can be enforced against them.


These injunctions were popularized by property owners as a tool to prevent squatters and trespassers. The people the injunctions were supposed to catch were individuals that were easily identifiable through their conduct but who could not easily be named. The use of these injunctions has increased in the context of online fraud and defamation as well as in response to data hacking – i.e. in areas where it is possible for someone acting anonymously through the internet to cause serious harm to another person.

An obvious difficulty with an order made against an unknown person, is how that order is properly served. This is typically overcome through service by an alternative method under CPR 6.15. In order to approve the proposed method of alternative service, the court will have to be satisfied the method could “reasonably be expected to bring the proceedings to the attention of the defendant[1].

Facts of the case

MBR Acres, a company running a facility breeding dogs to be used in animal testing applied for, and was granted, an injunction to prevent protesters coming within a certain distance of its facilities or from blocking access to them. The injunction applied to several named protesters and three categories of unnamed defendants, basically any future protesters that entered or blocked access to the facilities without permission. The injunction was granted and alternative means of service for the unknown defendants were approved. The Claimants were required to attach a copy of the application notice, the order granting the injunction and a covering letter to a notice board outside the Claimant’s facility. The covering letter had to include a web address for a Dropbox folder and explain to the reader they could access the documents attached to the letter along with the evidence filed in support of the application including the skeleton argument and the note of the hearing by going to the relevant Dropbox page.

Ms McGivern was a solicitor who attended the site to provide legal advice to the protestors. In so doing, Ms McGivern entered the prohibited zone outside the facility and so breached the terms of the injunction for around 20 minutes. Her actions were identified on CCTV. The Claimants began contempt proceedings against her. 

The Court’s decision

Ms McGivern accepted that she had breached the injunction but said at the time she had she was not aware of it or its terms. There was a factual question as to whether or not she had actual knowledge of the injunction through an earlier conversation with a police officer at a hearing in the Magistrates Court dealing with another protester whom she was advising. The Court accepted Ms McGivern’s version of events and accepted that she had not known of the injunction at the time she breached it.

The Court then went on to dismiss the Claimants application on the basis they had not properly served the junction on the unknown defendants stating that a “Court should require strict adherence to the terms of the alternative service order”. The Claimants failed to comply with the order for alternative service because only the front page of the letter was displayed on the notice board at the site and that page did not include the necessary explanation or the address to the Dropbox page. The full letter, containing all the information was available in a box under the notice, the Court held that did not strictly comply with the order for alternative service. The Judge noted that although the arguments about the Claimants’ failure to comply with the alternative service order were “technical, rather than substantive”, as the requirement to establish service or notice of the injunction was to the criminal standard, it was right to dismiss the committal proceedings on the grounds the Claimants had failed to properly serve the order.    

The judge, Mr Justice Nicklin, went on to note that there was a tension between two Court of Appeal decisions in relation to what the Claimants need to prove to demonstrate that Ms McGivern was bound by the injunction.

The Gammell principle (from the judgment in South Cambridgeshire District Council v Gammell[2]) determines that a person can subsequently be caught by the definition of an unknown person by doing some act after the grant of an interim injunction. In London Borough of Barking v Persons Unknown[3] the Court held that the Gammell principle only operated to make a party to proceedings, and therefore bound by an injunction, when they had knowingly breached that injunction. However, in the earlier case of Cuciurean v Secretary of State for Transport[4], the Court ruled that all that was required for an unknown person to be bound by the terms the injunction was for notice or service of the relevant order, ignorance of the injunction was not therefore relevant to determining liability. Mr Justice Nicklin noted that it was difficult to reconcile the different approaches between the two cases, with the later case stating there was a requirement for a knowing breach of an injunction for someone to become a person unknown, without considering or citing the earlier case which expressly rejected that requirement.

The Court made its ruling without needing to resolve that discrepancy as the contempt application was dismissed on the ground the Claimants had failed to comply with the order for alternative service; however the Judge clearly considered, obiter, that the correct approach was that knowing breach of the injunction was required. He indicated that, if he had been wrong on the alternative service point, he would in any event have dismissed the application because, on the evidence, Ms McGivern did not have actual knowledge of the injunction.

Having preferred her evidence to that of the Claimants’ witnesses and having regard to the stress and upset it had caused Ms McGivern, Mr Justice Nicklin went on to be highly critical of the application and the way it was pursued by the Claimants.  He considered that it should have been evident after the Claimants had received Ms McGivern’s evidence that the application was most unlikely to succeed, that even if the breach could be established it was technical only and would not have given rise to any penalty and that he found it very difficult to understand the Claimants’ motivation for pursuing the application.  He considered that the injunction had not been granted to catch actions such as those taken by Ms McGivern and, given his serious and severe criticism of the Claimants for pursuing the application, he imposed an additional requirement that the Claimants could not make a future application for contempt in similar circumstances without permission of the Court.

Future difficulties with enforcing these types of injunctions

The judgment in the case indicates that parties seeking to enforce an injunction against an unknown person can now not be sure if they need to establish the person knowingly breached the injunction or if they can rely on the injunction being properly served to enforce it, notwithstanding the Judge’s obiter preference for the former. If a party is forced to prove knowing breach of the injunction in order to take action it that will make them much harder to enforce in future.

One thing that is very clear from the judgment is a party that seeks to enforce an injunction an unknown defendant must make sure they precisely follow the terms of the orders for alternative service as a failure to do so will mean that the injunction cannot be enforced against the new parties.   Careful consideration must also be given as to the merits of the application.  Applications for contempt are a very serious remedy and should only be pursued where the breach is more than technical and can clearly be established to the criminal standard i.e. beyond reasonable doubt.

[1] Cameron v Liverpool Victoria Insurance Co Ltd [2019] 1 WLR 1471 [21]

[2] South Cambridgeshire District Council v Gammell [2006] WLR 658

[3] London Borough of Barking and Dagenham and others v Persons Unknown and others [2022] EWCA Civ 13

[4] Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357


Andrew Love

Laurence Harris