CMOC v Persons Unknown

The court may permit proceedings and injunctions against persons unknown where the defendant description is sufficiently certain to identify those included and excluded. That jurisdiction is not confined to interlocutory or proprietary injunctions and may extend to worldwide freezing relief, particularly where the order supports ancillary information relief and asset tracing.

Service out may be authorised where there is a good arguable case that damage was sustained within the jurisdiction, or where a restitutionary gateway applies. The court must also be satisfied that England is clearly the more appropriate forum. Banks may be ordered to provide information under the Bankers Trust principles and the CPR 25.1(1)(g).

CMOC alleged that persons unknown had infiltrated the email account of a senior manager and used fraudulent payment instructions to transfer approximately £6.3 million from its London bank account to accounts held with banks worldwide.

The applicant sought worldwide freezing relief against the unidentified perpetrators, permission to serve the claim form out of the jurisdiction and by alternative methods, and information orders against recipient banks. The central issues were whether persons unknown could be defendants to a freezing claim, whether the jurisdictional and forum requirements for service out were satisfied, and whether information could be obtained from the banks.

1. Persons unknown. The court had jurisdiction under the CPR regime to permit service of a claim form on persons unknown. The description must be sufficiently certain to identify both those within the class and those outside it. It may apply to no one or to more than one person, and subsequent identification is unnecessary. The proposed defendants were sufficiently identified by reference to the alleged fraudulent activities, the relevant transfers from the Bank of China accounts and the legal or beneficial holders of the recipient accounts.
2. Freezing relief. The principle permitting injunctions against persons unknown was capable of extending to a freezing injunction. Potential later issues concerning contempt or notification did not justify refusing relief. A primary freezing injunction could provide the necessary basis for ancillary relief against third parties, including notification to banks and the obtaining of information capable of identifying the perpetrators. The court therefore granted the relief, subject to amendments to the draft order.
3. Service out and forum. There was a good arguable case that the tort gateway was satisfied because the immediate loss was sustained in England, under paragraph 3.1(9)(a) of Practice Direction 6B, or alternatively under the restitutionary gateway in paragraph 3.1(16). The court also considered England clearly the more appropriate forum because the money had been taken from a London account. Alternative service on recipient banks by specified email and physical addresses was justified.
4. Information orders. The banks were a critical source of information concerning the destination of the money. The court was satisfied that jurisdiction existed under the Bankers Trust v Shapira principles and/or CPR 25.1(1)(g). Banks outside the jurisdiction and the European Union were necessary and proper parties for service-out purposes. For banks within the European Union, article 7.2 of the recast Brussels Regulation applied, subject to completion and attachment of Form 510.