Anton Chirkunov v Person(s) Unknown & Anor

The Claimant brought a data protection claim under the UK General Data Protection Regulation and the Data Protection Act 2018 complaining of continued publication online of material he says contains his personal data and is inaccurate. The Claimant sought damages under Article 82 UK GDPR and/or s.168 DPA 2018, mandatory relief under s.167 DPA 2018 and Articles 17(2) and 19 UK GDPR, and a declaration of inaccuracy.

The main contested procedural applications were for permission (1) to serve the Claim Form out of the jurisdiction (CPR 6.36/6.37) on defendants described as "Persons Unknown", (2) to serve the Claim Form by alternative means (CPR 6.15) by email, and (3) for dispensation from the requirement to include defendants’ addresses on the Claim Form (CPR PD16 §2.2). The judge accepted that the pleaded claim raised a serious issue to be tried and that the claim fell within Practice Direction 6B gateways, but declined to permit service out or alternative service because the claimant had not identified where the defendants were likely to be found and had not shown that the proposed email service was reasonably likely to bring the proceedings to the attention of the data controllers in question. The judge emphasised the substantive importance of CPR 6.37(1)(c), the need for proper investigation (including Norwich Pharmacal options) when proceeding against Persons Unknown, and proportionality and enforceability considerations. The judge granted retrospective dispensation to omit addresses on the Claim Form.

Background and parties: The Claimant is the founder and chief executive officer of Wheely Ltd and a UK resident. He challenged two online articles, one published on rucriminal.info from 13 January 2021 and one on talk-finance.co.uk from 19 June 2023, alleging they contain his personal data and are inaccurate. Two defendants were pleaded as "Person(s) Unknown" responsible for publication on each website; no postal addresses were provided and only contact email addresses shown on the websites were identified.

Nature of the application: The Claimant applied for (a) permission to serve the Claim Form out of the jurisdiction (CPR 6.36/6.37); (b) permission for alternative service by email (CPR 6.15), and (c) an order dispensing with the requirement to provide the defendants' addresses on the Claim Form (CPR PD16 §2.2). The underlying substantive claim sought compensation (Article 82 UK GDPR / s.168 DPA 2018), compliance orders including erasure and communication steps under Article 17(2) and Article 19 UK GDPR enforced by mandatory injunction (s.167 DPA 2018), and a declaration of inaccuracy.

Issues framed:

• Whether the claim gives rise to a serious issue to be tried and falls within the gateway(s) in CPR PD6B §3.1 for service out.
• Whether the claimant had complied with CPR 6.37(1)(c) by identifying the place or likely location of the defendants and whether non-compliance is fatal.
• Whether there was a "good reason" to permit alternative service under CPR 6.15 and whether service by email to the addresses displayed on the websites was reasonably likely to bring the proceedings to the attention of the data controller(s).
• Whether the court should exercise its discretion to permit service out in the absence of adequate investigation (including Norwich Pharmacal avenues) and in light of proportionality and enforceability concerns.

Court’s reasoning and findings: The judge accepted that, if the defendants are treated as the data controllers for each website (a narrowed definition the claimant agreed to adopt), the merits threshold for permission to serve out was met and the claim fell within PD6B gateways (paragraphs (2) and (9)). However, the court was not satisfied that England & Wales was clearly or distinctly the appropriate forum because the claimant had not identified the country (or place) in which the defendants were likely to be found (CPR 6.37(1)(c)). The judge held that that requirement is substantively material to the forum and service analysis, to selecting permissible methods of service (CPR 6.40) and to comity where the Hague Service Convention may apply. The claimant’s evidence of investigatory steps was held to be perfunctory and incomplete: he had not pursued available Norwich Pharmacal avenues satisfactorily, had provided incomplete/unexplained secondary evidence about alleged extortion attempts and intermediaries, and had not shown that the email addresses shown on the websites were likely to reach the data controllers. On alternative service, the judge concluded that sending the Claim Form to the published website email addresses was not reasonably likely to bring the proceedings to the attention of the persons who would qualify as data controllers and therefore failed the Abela/Abela-derived test for "good reason" under CPR 6.15. The court therefore refused permission for service out and alternative service. The judge did, however, grant retrospective dispensation to omit addresses on the Claim Form because the claimant presently could not provide them. The court also observed that applications to serve Persons Unknown out of the jurisdiction in the Media & Communications List should generally be listed for hearing rather than decided on paper.

At first instance the court refused the Claimant's applications for permission to serve the Claim Form out of the jurisdiction and for alternative service by email. The judge accepted that the claim raised a serious issue and fell within PD6B gateways, but concluded that the claimant had not identified the place the defendants were likely to be found (CPR 6.37(1)(c)) nor shown that email to the website contact addresses was reasonably likely to bring the proceedings to the attention of the data controllers (CPR 6.15). The court therefore declined to exercise its discretion to permit service out or to authorise alternative service. The court granted retrospective dispensation to omit defendants' addresses on the Claim Form (CPR PD16 §2.2). The refusal was grounded on inadequate investigation, the substantive importance of identifying the defendants' likely location for forum and service analysis, and proportionality/enforceability considerations.