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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 864 (QB),  ELR 341
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
| Birmingham City Council
|- and -
|(1) Mr Shakeel Afsar
(2) Ms Rosina Afsar
(3) Mr Amir Ahmed
(4) Persons Unknown
(5) John William Allman
Ramby de Mello and Tony Muman (instructed by J. M. Wilson Solicitors) for the First to Third Defendants
Paul Diamond and Thomas Green (public access barristers) for the Fifth Defendant
The Fourth Defendants did not appear and were not represented
Crown Copyright ©
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down is deemed to be as shown opposite:
MR JUSTICE WARBY:
The procedural background
"132. … it seems to me – subject to any further argument - that the final order against Persons Unknown in this case can only be made against persons who are parties to the action at this point in time. It cannot be framed in such a way as to extend to all members of the "transient, mobile" class described in the Particulars of Claim. It can only be made in terms that confine its effect to those who have been served with the proceedings prior to trial. It may be that the Council will have to give undertakings to use reasonable efforts to trace and identify those who do fall within the class of Persons Unknown who remain defendants to the claim, and targets of the final order.
133. The precise terms of the final order to be granted will remain to be settled by agreement or, failing that, by a decision from me. But the shape of the final relief I will grant should be clear enough from what I have said above. The individual defendants' freedom to protest in the street in ways that are anti-social, cause a public nuisance, or obstruct the highway, will continue to be curtailed to an extent that I consider is convincingly shown to be necessary in a democratic society in the pursuit of the legitimate aims I have spelled out. Persons Unknown, who have had proper notice of this claim, will be similarly restrained."
1. (For the reasons and to the extent set out in the Judgment) the Claimant's claim for an injunction against the First, Second, Third and Fourth Defendants is granted.
2. The Claimant's claim for an injunction against the Fifth Defendant is dismissed.
3. The precise terms of the final injunctions to give effect to paragraph 1 above will be settled at a further hearing, and there shall be further submissions as to the basis and terms of the injunction against the Fourth Defendant and the scope of class of persons included within the definition of "persons unknown" ("the Remaining Issues") as follows:
3.1 the Claimant shall file and serve written submissions by 16 January 2020;
3.2 the Defendants shall file and serve any written submissions in response by 4.00 pm on 24 January 2020;
3.3 the Claimant shall, if so advised, file and serve written submissions in reply by 4.00 pm on 30 January 2020;
4. For the purposes identified in paragraph 3 above the trial is adjourned to a date to be fixed ("the Adjourned Hearing"). Pending the Adjourned Hearing there shall be injunctions in the terms set out or identified in Annexe 1.
5. The Adjourned Hearing, at which the court will hear oral submissions on the matters identified at 3 above, may be listed on the first open date after 3 February 2020. Parties must provide the court with their dates of availability by 20 January 2020.
9. For the purposes of CPR 52.3(2)(a) "the hearing at which the decision is made", and hence the hearing at which any application to this Court for permission to appeal must be made, shall be
9.1 in relation to the claims against the First, Second, and Third Defendants, the Adjourned Hearing;
9.2 in relation to the claims against the Fourth Defendant, the Adjourned Hearing or, if judgment on the Remaining Issues is reserved, the hearing at which that reserved judgment is handed down.
10.Pursuant to CPR 52.12(2)(a), time for any party to file an Appellant's Notice at the appeal court in relation to the claims against the First, Second, Third and Fourth Defendants is extended until 21 days after the date of "the hearing at which the decision is made", as identified in paragraph 9 above.
On 26 November 2019, the court gave judgment on a claim for final injunctions against the Fourth Defendant, but directed that there should be a further hearing ("the Adjourned Hearing") to resolve the Remaining Issues (as defined in the body of the order dated 26 November 2019)
The Court Ordered that until after judgment on the Remaining Issues the interim injunction dated 10 June 2019 shall continue against the Fourth Defendant
(1) The Claimant's application for the Court to grant a final injunction against the fourth defendant ("the Persons Unknown Application");
(3) The applications of the First and Second Defendants, for the variation of the terms of the injunctions against them contained in Annex 1 to the Final Order ("the Variation Applications");
(4) The Claimant's application for the "reinstatement" of part of the draft judgment; this, on analysis, is an application to waive confidentiality in part of the draft of the Trial Judgment, so I will call it "the Waiver Application";
(6) The applications of the Second and Third Defendants, for permission to appeal ("the Permission Applications").
Determination without a hearing
The Persons Unknown Application
(1) The authorities which established the jurisdiction to grant injunctive relief against persons unknown - Bloomsbury Publishing Group Plc v News Group Newspapers Ltd  EWHC 1205 (Ch)  1 WLR 1633 and Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site  EWHC 1738 (Ch)  EnvLR 9 - recognised no inherent limit on the scope of that jurisdiction. They held that it is enough for the persons unknown to be described in a way that is sufficiently certain as to identify both those who are included and those who are not: Bloomsbury [19-22], Hampshire Waste [9-10].
(2) Neither Cameron nor Boyd v Ineos cast any doubt on those authorities, or the principles enunciated in them.
(3) The factual situations considered by the Supreme Court in Cameron were wholly different from those that arise in the present case.
(4) The description of persons unknown in the interim injunction in this case is sufficiently certain to identify those who fall within it and those who do not.
(5) There is no good reason why a final injunction should not be granted on the same basis.
(6) In a series of cases before, and after, Cameron and Boyd v Ineos the court has granted injunctions, including final inunctions, against persons unknown: see Vastint Leeds BV v Persons Unknown  EWHC 2456 (Ch),  4 WLR 2, Secretary of State for Transport v Persons Unknown  5 WLUK 273, Kingston Upon Thames RLBC v Persons Unknown  EWHC 1903 (QB), Arch Co Properties v Persons Unknown  EWHC 2298 (QB), all but the second of these cases being instances of final injunctions.
(7) The authorities, including Cameron itself, show that it may be legitimate to grant such orders on the footing that a person, through the very act of infringing the order, becomes (i) a party to the proceedings in which the order was made; (ii) bound by that order; and (iii) in breach of that order: see Vastint [23-24] and Cameron , approving South Cambridgeshire District Council v Gammell  EWCA Civ 1429,  1 WLR 658.
(8) Various authorities support the proposition that different rules on service should apply to claims against persons unknown: see TUV v Person or Persons Unknown  EWHC 853 (QB), Middleton v Person or Persons Unknown  EWHC 2354 (QB), Kerner v WX  EWHC 1247 (QB), the notes in the White Book 2019 at para. 19.1.3, and Ansco Arena Limited v Law and Others  EWHC 835 (QB).
(9) In any event, the process of service by an alternative method that was approved and adopted in this case was sufficient to make everyone within the description of persons unknown a party to the action, and sufficient to satisfy the fundamental principle of justice identified by Lord Sumption in Cameron at :
"… that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard."
(10) The procedures adopted here afforded those affected a full and fair opportunity to participate in the proceedings, and contest the claim. Those affected will also be entitled, if they wish, to apply to vary or discharge the order after it was made.
(11) It would have been and would be disproportionate to require the Claimant to identify and serve individually all potential protesters who might be affected by the injunction, or indeed to identify all protestors who had become aware of the proceedings prior to the final hearing, which could amount to thousands of people, even if such an exercise could theoretically be undertaken.
(12) Canada Goose lays down no broad principle as to the permissibility of making a final injunction against a class of persons unknown, as was done in the various cases referred to above. The case is also distinguishable from the present case for the following principal reasons:
a) The claims were brought by private persons, relying on different causes of action, including harassment.
b) The final injunction was sought on an application for summary judgment.
c) The Judge was unable to assess whether there had been any breach of the claimant's Convention rights.
d) The court had not been presented with any evidence of the impact of the demonstrations on customers, visitors or staff of the claimant, which fell below the threshold for harassment.
e) The people for whose benefit the injunction was sought were also a protean class of unidentifiable individuals.
f) The definition of persons unknown was or may have been too broad.
g) There was a possibility that a lawful defence might exist, whereas the Court has held in this case that the protests were unlawful. Accordingly, the issue which could arise in the case of persons who did not take part in the trial is not whether the claim was validly made, or whether the order should have been made on the facts, but whether they should be subject to it or some future circumstance should cause the court to vary or discharge it. These issues can be considered at an application to vary or discharge.
(13) Further and alternatively, Canada Goose was wrongly decided on its facts.
(14) Further and alternatively, the status of the claimant here, and the clear public interest in ensuring that the School and the claimant can carry out their lawful functions without interference of the kind in question here are factors that distinguish the present case (and those mentioned at 5(6) above) from cases like Cameron, Boyd and Canada Goose, and supports the grant of relief in the wider terms contended for by the claimant.
"82. Building on Cameron and the Ineos requirements, it is now possible to set out the following procedural guidelines applicable to proceedings for interim relief against "persons unknown" in protester cases like the present one:
(1) The "persons unknown" defendants in the claim form are, by definition, people who have not been identified at the time of the commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. The "persons unknown" defendants must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary by alternative service such as can reasonably be expected to bring the proceedings to their attention. In principle, such persons include both anonymous defendants who are identifiable at the time the proceedings commence but whose names are unknown and also Newcomers, that is to say people who in the future will join the protest and fall within the description of the "persons unknown".
(2) The "persons unknown" must be defined in the originating process by reference to their conduct which is alleged to be unlawful.
(4) As in the case of the originating process itself, the defendants subject to the interim injunction must be individually named if known and identified or, if not and described as "persons unknown", must be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order.
"Final order against "persons unknown"
89. A final injunction cannot be granted in a protester case against "persons unknown" who are not parties at the date of the final order, that is to say Newcomers who have not by that time committed the prohibited acts and so do not fall within the description of the "persons unknown" and who have not been served with the claim form. There are some very limited circumstances, such as in Venables v News Group Newspapers Ltd  Fam 430, in which a final injunction may be granted against the whole world. Protester actions, like the present proceedings, do not fall within that exceptional category. The usual principle, which applies in the present case, is that a final injunction operates only between the parties to the proceedings: Attorney-General v Times Newspapers Ltd  1 AC 191, 224. That is consistent with the fundamental principle in Cameron (at ) that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard.
91. That does not mean to say that there is no scope for making "persons unknown" subject to a final injunction. That is perfectly legitimate provided the persons unknown are confined to those within Lord Sumption's Category 1 in Cameron, namely those anonymous defendants who are identifiable (for example, from CCTV or body cameras or otherwise) as having committed the relevant unlawful acts prior to the date of the final order and have been served (probably pursuant to an order for alternative service) prior to the date. The proposed final injunction which Canada Goose sought by way of summary judgment was not so limited. Nicklin J was correct (at ) to dismiss the summary judgment on that further ground (in addition to non-service of the proceedings). Similarly, Warby J was correct to take the same line in Birmingham City Council v Afsar  EWHC 3217 (QB) at ."
(1) The facility to sue individuals anonymously as "persons unknown" is a significant departure from one of the basic norms of civil litigation: that the defendant to the claim must be named. The use of this facility needs to be carefully supervised, to ensure that it is not abused. Two key requirements are that (a) the person's identity must be unknown and (b) the person must be readily identifiable as a defendant to the claim.
(2) The proceedings were, in this respect, defective at the outset; the description of "persons unknown" failed to satisfy the essential requirement of identifiability, emphasised by the Chancellor in the Bloomsbury case and re-emphasised by the Court of Appeal in Canada Goose at [82(2)]. I do not consider that the Court, or a person given notice of the proceedings, can fairly be expected to work their way through the body of a lengthy statement of case to work out whether they are a target of the claim. In the case of an intended defendant, this may not be realistic, either. I regard the failure to describe the fourth defendant with more precision as a breach of the requirement identified by the Court of Appeal in Canada Goose, and a fundamental defect.
(3) That defect was identified by me at the interim stage, and addressed in the interim injunction I granted. In paragraph  of the Interim Judgment I said this:
"My reservations concern the identity of the fourth defendant. As things stand, this is "all persons" other than the named defendants. There is no limitation on the category, with the consequence that the order is, in form and in practice, an order against the entire world including - as I observed at the hearing – me. I have not been provided with any reasoned explanation for not limiting the category of Persons Unknown who are to be made parties to this action in the way that has been standard practice since the Bloomsbury case: a designation must be supplied which sets some limits upon the class in question, and enables a person to state whether any given individual is a member of the class of Persons Unknown who are targeted by the claim and the injunction. The new order will therefore be limited by such a description. Unless the parties persuade me otherwise, this will be "Persons Unknown seeking to express opinions about the teaching at the School"."
But the defect thus identified was never remedied so far as the claim form is concerned.
(4) Accordingly, although it is true that an order was made permitting service of the Claim Form and the interim order by alternative methods, and I can assume that this was done, compliance with that order cannot be relied on as amounting to service of the proceedings on anyone who qualifies as a fourth defendant.
(5) I also accept, in general terms, the submission of the named defendants that the anonymous defendants, or at least some of them, were or are identifiable and could and should have been joined by name if the claimants wished to seek injunctive relief against them. I conclude from the video evidence, coupled with the written and oral evidence of witnesses, that the claimants either did or could have identified and joined a significant number of those who had protested outside the school in ways that were unlawful, and who threatened or intended to do so again, unless restrained. That has not been done. It would be contrary to principle and unjust to restrain a group that includes individuals who, for that reason, have not been afforded the full opportunity to participate in the proceedings that would have been available, had they been named and served in the usual way.
(6) Finally, I would refuse an order on the lines now sought as a matter of discretion. In my judgment, the injunctions against the first three defendants will have a real and practical effect, even if no wider order is made. If that proves not to be the case, it will be because others have taken their places in organising or encouraging protests. The claimants will be able to pursue proceedings against those others, armed with the greater learning about injunctions of this kind that is now available as a result of the Court of Appeal's decision in Canada Goose.
The Variation Application
The Waiver Application
"This is a judgment to which the Practice Direction supplementing CPR Part 40 applies. It will be handed down on Tuesday 26th November 2019 at 10:30 in Court No 602. This draft is confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved. No action is to be taken (other than internally) in response to the draft before judgment has been formally pronounced. A breach of any of these obligations may be treated as a contempt of court. The official version of the judgment will be available from the Courts Recording and Transcription Unit of the Royal Courts of Justice once it has been approved by the judge.
The court is likely to wish to hand down its judgment in an approved final form. Counsel should therefore submit any list of typing corrections and other obvious errors in writing (Nil returns are required) to the clerk to Mr Justice Warby, via email at **** @justice.gov.uk, by 4:00pm on Monday 25th November, so that changes can be incorporated, if the judge accepts them, in the handed down judgment."
"The request that the finding be removed from the judgment was not really the sort of uncontroversial editorial correction that would normally be included in a return to a draft judgment and, regrettably, for personal reasons, did not come to the attention of counsel for the Claimant before the handing down of judgment on 26 November."
(1) Until an order is sealed, the Judge has a discretion to alter a judgment, but this should not be done save in "exceptional circumstances", or (perhaps an acceptable alternative) where there are "strong reasons": In re Barrell Enterprises  1 WLR 19, 23 (Russell LJ), Compagnie Noga d'Importation et d'Exportation SA v Abacha (No 2)  3 All ER 513  (Rix LJ).
(2) The exercise of the discretion should be even rarer after the delivery of a written reserved judgment, compared to an extempore judgment, or one that has remained in draft: Stewart v Engel (Permission to amend)  1 WLR 2268, 2276A (Sir Christopher Slade), Robinson v Fernsby  EWCA Civ 1820  (May LJ) and  (Mance LJ).
(3) The claimants have failed to show that the case is exceptional or that there are any strong reasons for granting their application. The judgment is complete and sufficient; there is no need for additional findings. Nothing turns on the draft finding of fact. It is not explained how it might be relevant to an appeal.
(4) A number of other factors count against the exercise of the discretion in the claimants' favour. These included the facts that the draft was circulated in confidence, with the potential for sanctions in the event of disclosure, as the rubric shows. The claimants failed to raise any complaint when the judgment was delivered, and have delayed for months before making this application.
(5) There is an ulterior purpose to the application, which is an abuse.
(6) The contents of the finding in question should not be brought into court even if the application is granted.
(1) In re Barrell Enterprises was an attempt to re-open a final appeal against a committal order, on the grounds of fresh evidence, before the final order was drawn up. There was no application for an amendment of any draft or final judgment.
(2) In Abacha, the Judge having circulated a draft judgment giving reasons for dismissing the claimant's claim in contract for US$100 million, the claimant contended that the reasoning was legally flawed, and sought amendment of the judgment and reversal of the decision.
(3) In Stewart v Engel the claim was for damages for negligence and breach of contract. The judge gave a reasoned judgment dismissing a claim, and orally expressed an intention to do so; but before the order was drawn up the claimant applied for permission to amend to add a new cause of action in conversion. There was no challenge to the decision to dismiss the claim as originally pleaded, or to the content of the draft or final judgment that explained that decision. Permission to amend was granted. The Court of Appeal allowed the appeal, but did so on the basis that the Judge had power to grant permission, but had been wrong to do so on the facts.
(4) In Robinson v Fernsby a daughter claimed under the Inheritance (Provision for Family and Dependents) Act 1975, seeking reasonable financial provision out of her mother's estate. Following a trial, the Judge circulated a draft judgment awarding a further provision of £60,000. Counsel for the defendant wrote to suggest that the Judge's reasoning was flawed in law. Following written submissions from both parties, the judge circulated a revised judgment dismissing the claim. Over the objections of Counsel for the claimant, the Judge handed down this version, but gave permission to appeal. The Court of Appeal, with some hesitation, dismissed the appeal.
(1) The introduction of the CPR did not affect the long-settled principle that a judge has power to recall, reconsider and alter an order made after he had given judgment at any time before the order is drawn up and sealed: , [78-82], , .
(2) The exercise of the jurisdiction generally requires exceptional circumstances or strong reasons, though there may be circumstances in which it must be exercised in the interests of justice: [83-86], , .
(3) Those criteria apply to the alteration of a draft judgment which has been circulated to the parties before being handed down: .
(4) The same criteria apply, with greater force, where the judgment is a formal written judgment in final form handed down after the parties have been given the opportunity to consider it and make representations on the draft; there are obvious reasons – including the desirability of finality - why the court should hesitate long and hard before making a material alteration to such a judgment: , .
(5) The question whether to exercise the jurisdiction can only depend on the circumstances of the particular case: .
(6) The decision in a particular case is an exercise of judicial discretion which will only be interfered with on appeal on the usual grounds for discharging a discretionary decision: .
(1) A judge is not bound by the terms of a draft judgment that has been circulated in confidence. The primary purpose of the practice is to enable any typographical or similar errors to be notified to the court, but on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft: .
(2) Draft judgments circulated in accordance with the standard practice are confidential as are the observations and submissions of the parties about the draft judgments: .
(3) The minimum requirement before wider circulation of the draft would be permissible is an application to the court for the confidentiality principle or understanding to be reviewed in the context of the individual case: .
(4) Tempting though it would be "to declare that the confidentiality principle as it applies to draft judgments should never be waived … adamantine rigidity of this kind would fail to allow for cases of high exceptionality": .
The Permission Applications