Kerner v WX & Anor

An interim injunction against persons unknown should not remain in force indefinitely merely because the defendants cannot be traced. The court must use active case management to prevent proceedings from becoming dormant. Where identification and service remain uncertain, it is appropriate to continue the injunction subject to a return to the court for directions within a defined period. The court may then consider dismissal, summary judgment, substitution or addition of parties, or proceeding in the absence of a third party, as appropriate to the circumstances.

The claimant sought continuation of an interim injunction restraining persons unknown from harassing her and her son. The injunction had been granted on 22 January 2015, with reasons given in [2015] EWHC 128 (QB). The claimant had attempted to identify the defendants but neither had been served or appeared. The central issue was how the proceedings and injunction should be managed while those enquiries remained incomplete.

1. The injunctions were continued until trial or further order. The need for them had not expired.
2. The claimant was required to renew her undertaking in damages and her undertaking to keep third parties informed of the progress of the claim. She was also required to undertake that, if she could not trace the defendants within three months, she would apply to a judge for directions.
3. The undertaking was necessary to prevent the interim order becoming permanent by default. Proceedings involving persons unknown must remain subject to active case management.
4. The court referred to the Master of the Rolls’ Practice Guidance, reported at [2012] 1 WLR 100. That guidance identifies possible methods of concluding proceedings where a trial is unlikely to take place, including dismissal, summary judgment, judgment by consent, substitution or addition of a defendant, and proceeding in the absence of a third party. The guidance concerned interim non-disclosure orders, but some of its principles were applicable because the defendants were involved with the news media.
5. The court expressed no concluded view on the appropriate final disposal if the defendants could not be traced. It held only that an interim order should not remain in force in perpetuity.