Kerner v WX & Anor

An interim injunction may restrain apprehended harassment by persons unknown where the evidence establishes a real risk of repetition and it is more likely than not that relief will be granted at trial. A claimant may sue unidentified defendants where they can be sufficiently described by reference to the conduct complained of. A proposed restraint on publication engages s 12 of the Human Rights Act 1998. Advance notice must ordinarily be given to affected media organisations, and a broad publication restraint should not be granted without compelling justification and evidence of likely publication.

The claimant sought an urgent interim injunction under the Protection from Harassment Act 1997 for herself and her nine-year-old son. Two unidentified men had pursued them, taken photographs at their home, photographed the child and loitered outside the property. The claimant also sought to restrain publication of photographs and identifying information.

The court permitted the claimant to act representatively for her son under CPR 19.6 and joined the two men as persons unknown, identified by pseudonyms and conduct. The central issues were whether interim relief against apprehended harassment was justified and whether a non-disclosure order affecting media publishers could be made without prior notice.

1. Harassment injunction. The court was satisfied that there was a real risk that the conduct would be repeated. On the evidence, it was more likely than not that the claimant would obtain relief at trial for harassment by photography, videoing, loitering within the specified exclusion zone or knowingly pursuing either protected person. Relief was therefore granted against the two persons unknown until a return date.
2. Proceedings against persons unknown. It was legitimate to sue the unidentified individuals because they could not be identified within the available time, but could be described by their responsibility for the specified events.
3. Notice under the Human Rights Act. The application for a restraint on publication engaged s 12 of the Human Rights Act 1998. The court treated the notice requirements in the Master of the Rolls’ Practice Guidance as applying both to respondents and to non-parties who would be served with, or otherwise notified of, the order. The principle in X & Y v Persons Unknown [2007] EMLR 290 was applied.
4. Publication restraint refused. No media publisher had received advance notice, no attempts to give notice had been shown, and no compelling reason for dispensing with notice had been established. In addition, the evidence fell well short of demonstrating that publication was likely, while the proposed order was excessively broad. The claimant did not pursue that part of the application.
5. The court required undertakings similar to those in Schedule B of the Practice Guidance’s Model Order and limited the injunction to a return date rather than granting it until trial or further order.