Stone & Anor v WXY (Person Or Persons Unknown)

Under CPR 19.2(2), a person should be joined as a defendant only where joinder is substantively desirable for resolving matters in dispute or a connected issue. The court should not add an identifiable individual merely because that person is a convenient means of bringing dormant proceedings to an end. Relevant considerations include whether there is a live issue, whether the existing proceedings were properly constituted, whether the proposed defendant has a realistic connection with the alleged wrongdoing, and whether joinder offers a tangible or legitimate advantage. The court may assess these matters without finally determining the merits. Where the proceedings are defective and stale, and a fresh claim would be the proper route, joinder may be refused.

The claimants had commenced proceedings against persons unknown, identified as “WXY”, seeking protection from alleged harassment by paparazzi around the time of their wedding. An interim injunction was granted on 14 May 2010. The claimants later identified freelance photographer Jani Jance and applied to join him as an individual defendant, with the intention of converting the interim order into a permanent injunction.

Mr Jance opposed joinder. He disputed having harassed the claimants and relied on the inactivity and procedural defects in the existing proceedings, including the absence of particulars of claim and the use of CPR Part 7 for a claim invoking section 3 of the Protection from Harassment Act 1997. The issue was whether it was desirable to join him to the dormant proceedings rather than require a fresh claim.

1. The application to join Mr Jance was dismissed. The claimants had not shown that joinder was positively desirable under CPR 19.2(2).

2. Joinder requires a substantive justification. A claimant cannot add an individual merely because that person is the only identifiable participant or a convenient vehicle for disposing of proceedings against persons unknown.

3. The court considered the existing proceedings materially defective and dormant. No particulars of claim had been served under CPR 7.4(1)(b), the claim had been issued under Part 7 although the claim invoked section 3 of the Protection from Harassment Act 1997 and should have been issued under Part 8 pursuant to CPR 65.28, and the proceedings had progressed no further than the claim form.

4. The evidence did not establish a clear recent course of conduct by Mr Jance or a clear tangible benefit from joining him. The court did not determine that the claim had no reasonable prospect of success, but the apparent weakness and uncertainty of the allegations reinforced the conclusion that joinder was not desirable.

5. The description of persons unknown must be sufficiently certain to identify those included and excluded, applying the approach in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633. The court also identified uncertainty in the reference to photography “in other places”, and defects concerning the intended exclusion zone and witness statements.

6. The appropriate course, if a claim against Mr Jance could be justified, was a properly constituted fresh claim rather than grafting him onto the existing dormant proceedings.