Bloomsbury Publishing Group Ltd. & Anor v News Group Newspapers Ltd. & Ors

Under the Civil Procedure Rules 1998, a defendant need not be named if the description used is sufficiently certain to identify both those within it and those outside it. A description may cover one person, several persons, or none. It need not depend upon a later act of identification by service.

The former rules concerning writs did not govern the new procedural code. An injunction may therefore be made against persons unknown who fall within a sufficiently certain description. A person within that description is bound by the order and may be liable for contempt if acting inconsistently with it.

Copies of J. K. Rowling’s unpublished fifth Harry Potter book were removed without authority from the printer and offered to newspapers. The claimants obtained interim delivery-up and non-disclosure orders against persons described by their conduct, as well as orders concerning named defendants.

The remaining issue was whether an injunction should continue against an unnamed defendant or defendants. The claimants sought to amend the description to include persons who had offered a copy or part of the book to specified newspapers, and persons physically possessing a copy or part without the claimants’ consent. The central issue was whether the court had power to make, and should make, such an order against persons unknown.

1. Application granted. The court made the order against persons unknown in the amended form sought. The description was sufficiently certain and the balance of justice favoured protection of the claimants’ unpublished work.

2. Friern Barnet UDC v Adams [1927] 2 Ch. 25 did not govern proceedings under the Civil Procedure Rules 1998. That decision rested on the former Rules of the Supreme Court, under which the prescribed writ required a named defendant and the description used was too vague. Under the current rules, the claim form may be varied where circumstances require, the Practice Direction says that a party’s full name should be stated, and procedural error does not invalidate a step unless the court orders otherwise.

3. The overriding objective and the court’s duty to give effect to it were inconsistent with treating the absence of a name, without more, as an impermissible joinder. The claimants were accordingly entitled to join defendants described rather than named.

4. In Re Wykeham Terrace [1971] 1 Ch. 204 was distinguishable. In that case there was no defendant and the order sought would not bind the trespassers. Here, there was a defendant or defendants identified by a sufficiently certain description. A person within it would be bound and could be liable for contempt if acting inconsistently with the order. A person who knowingly assisted a breach or nullified the purpose of a trial could also be liable for contempt.

5. The decisive requirement was certainty of description. It had to identify both those included and those excluded. Once that requirement was met, it was immaterial that the description might apply to nobody or to more than one person, or that service did not provide a further means of identification. No injustice arose from the order, whereas refusal risked substantial injustice to the claimants.

This was a first-instance decision. It followed interim orders by Laddie J and Rimer J in the same proceedings, continuing relief against persons unknown pending determination of the remaining issue. No appellate history is stated.