Anton Chirkunov v Person(s) Unknown & Anor

Applications to serve proceedings on persons unknown require evidence that the proposed method of service is reasonably likely to bring the claim to the attention of each defendant. The fact that conventional service is difficult, or that defendants have concealed their identities, is insufficient.

For service out of the jurisdiction, the claimant must satisfy the merits, gateway and forum tests. Identifying the defendant’s address, or at least the place where the defendant is likely to be found, is substantively important because it affects forum, permissible service methods and international comity. A claimant cannot ordinarily avoid reasonable pre-action investigations, including Norwich Pharmacal applications, merely because they are costly or time-consuming.

On a service-out application, the realistic prospects of enforcement and the tangible benefit of the proceedings may be relevant to the forum and proportionality assessment.

The claimant brought a data protection claim concerning articles published anonymously on two websites. He sought compensation, erasure-related relief, a compliance order and a declaration of inaccuracy against persons unknown said to be responsible for the publications.

The claimant applied for permission to serve the claim form out of the jurisdiction and by alternative service by email. He also applied retrospectively to dispense with the requirement to state the defendants’ addresses. The defendants did not attend or participate.

The court considered whether the claim had a serious issue to be tried, whether the jurisdictional gateways were satisfied, whether England and Wales was clearly or distinctly the appropriate forum, and whether email service was reasonably likely to bring the proceedings to the attention of the relevant defendants.

1. Definition of defendants. The claimant indicated that the claim could proceed against the data controller of each website rather than every person potentially responsible for publication. The court considered that narrower definition for the applications.
2. Service out. The merits test and gateway requirement were satisfied. The pleaded claim had a real prospect of success and fell within CPR PD6B §3.1 paragraphs (2) and (9). The forum test was not satisfied. The location of the defendants was unknown, and the claimant had not shown that England and Wales was clearly or distinctly the appropriate forum.
3. The requirement in CPR 6.37(1)(c) to state the defendant’s address, or the place where the defendant is or is likely to be found, is substantively important. It enables the court to assess forum, identify permissible methods of service, comply with CPR 6.40 and respect treaty obligations and foreign sovereignty. The court declined to decide conclusively whether non-compliance itself prevents permission, but held that the practical absence of location evidence seriously impaired the application.
4. Claims against persons unknown remain exceptional. A claimant must make reasonable efforts to identify the defendant and location, including considering Norwich Pharmacal relief. The claimant’s investigations were perfunctory and the explanation for not pursuing further inquiries was unpersuasive.
5. In assessing forum and proportionality, the court may consider the likely tangible benefit of the proceedings and the realistic prospects that an order could be enforced. The court should be slow to conclude that proceedings will be futile, but, before jurisdiction is exercised, enforceability is a relevant consideration.
6. Alternative service. Although there was good reason to seek an alternative method, the claimant had not shown that sending the claim form to the published email addresses was reasonably likely to bring it to the attention of the data controllers. The application therefore failed under CPR 6.15.
7. The application to dispense retrospectively with the requirement to state the defendants’ addresses was granted. The applications for service out and alternative service were refused. A further application could be made if better evidence of the defendants’ locations became available.

First-instance decision. The judgment records no appeal.