Canada Goose UK Retail Ltd & Anor v Unknown Persons

An interim injunction may be granted against unidentified protesters, including future protesters, only where they are capable of identification and effective service. The claim and order must define them by threatened unlawful conduct, identify known wrongdoers as individual defendants, and give effective notice.

The injunction must address a real and imminent threatened tort, be clear, and have geographical and temporal limits. It may restrict lawful conduct only where no other proportionate means protects the claimant’s rights. A final injunction cannot bind future protesters who were not parties and had not been served when it was made. Private civil proceedings are not a suitable means of permanently controlling a fluctuating public protest.

Canada Goose and its store manager brought proceedings seeking damages and injunctions concerning protests outside a London shop against the sale of clothing containing animal products. The defendants included persons unknown and PETA.

Interim injunctions imposed exclusion zones and restrictions on demonstrations and loud-hailers. Canada Goose later sought summary judgment and a final injunction. Nicklin J dismissed that application and discharged the interim injunctions, principally because the claim form had not been validly served and the proposed relief was too broad: [2019] EWHC 2459 (QB).

The appeal raised service, the permissible description of persons unknown, the requirements for interim relief against protesters, and whether a final injunction could bind future protesters.

1. Appeal dismissed. Nicklin J was entitled to refuse to correct the original order under the slip rule. The order reflected the draft placed before Teare J; there was no basis for finding that Teare J had intended to authorise alternative service of the claim form as well as his order.

2. Nor was there a proper basis to validate or dispense with service. Service is what subjects a defendant to the court’s jurisdiction. Emailing Surge and PETA could not reasonably be expected to bring proceedings to the unknown protesters’ attention. Canada Goose had also failed to use available methods likely to notify protesters at or near the store. The exceptional power to dispense with service could not cure that failure.

3. Building on Cameron v Liverpool Insurance Co Ltd, Ineos Upstream Ltd v Persons Unknown and Cuadrilla Bowland Limited v Persons Unknown, the court stated procedural guidelines for interim relief against persons unknown in protester cases. Known and identified wrongdoers must be joined individually. Unknown defendants, including future protesters, must be capable of identification and service. They must be defined by conduct alleged to be unlawful. There must be a real and imminent risk of tortious conduct, effective notice, clear terms, and geographical and temporal limits.

4. An interim order may exceptionally restrict conduct that would otherwise be lawful, but only to the extent that no other proportionate means protects the claimant’s rights. References to intention are permissible only where strictly necessary, expressed in non-technical language, and capable of proof without undue complexity; describing the prohibited effect of conduct is generally preferable.

5. The claim form and interim orders failed those requirements. Their description could include a peaceful protester with no intention of attending the store. Several prohibitions were not confined to unlawful conduct, notice was ineffective, and the original order was not time limited. The discharge of the interim injunctions was therefore correct.

6. A final injunction could not bind Newcomers who had not committed the prohibited acts, were not parties at the date of the order, and had not been served. Save for exceptional whole-world injunctions, a final injunction operates only between parties. A final order may nevertheless bind anonymous but identifiable persons who committed the relevant wrong before the order and were served. The proposed final injunction did not meet that standard.

The court also observed that private law remedies are a blunt and unsuitable mechanism for permanently controlling a changing public demonstration, which raises wider interests in civil liberties, neighbouring users of public space, and public policy.

• Court of Appeal (Civil Division): dismissed Canada Goose’s appeal and upheld the refusal of summary judgment and discharge of the interim injunctions: [2020] EWCA Civ 303.
• High Court (Queen’s Bench Division, Nicklin J): dismissed the application for summary judgment and discharged the interim injunctions: [2019] EWHC 2459 (QB).