SERVICE OF THE CLAIM FORM: FAILURE TO SERVE ANY DEFENDANTS WHEN APPLYING FOR AN INJUNCTION: THE GOOSE IS NOT PROPERLY COOKED…

In Canada Goose UK Retail Ltd v Persons Unknown & Anor [2019] EWHC 2459 (QB) Mr Justice Nicklin refused the claimants’ application for an injunction on several grounds. Here we look at the issues relating to service of the claim form.  This is a case where an application for an injunction failed because of a failure to adhere to basic principles in relation to service of the claim form.

“The suggestion that defendants within “persons unknown” as the First Defendants were ‘added’ each time a copy of the injunction order was served on them is not correct. Only service of a Claim Form (by a permitted method) or an order dispensing with the requirement to serve the Claim Form can make someone a defendant to a civil claim.”

THE CASE

The claimants sought injunctions against people demonstrating outside and in their forms. A without notice injunction was granted against “Persons unknown who are protestors against the manufacture and sale of clothing made of or containing animal products and against the sale of such clothing at Canada Goose, 244 Regent Street, London W1B 3BR”.  300 people were served with the injunction, none of these were added as parties to the proceedings.

NON- SERVICE OF THE CLAIM FORM

The judge observed that, although numerous protestors had been served with the injunction, none had been served with the claim form.
    1. I note the following:

i) The Claimants had undertaken to “effect email service as provided for below” of the Claim Form. The Order had not, however, imposed any requirement on the Claimants (or required from them any undertaking) to serve the Claim Form on the “Persons Unknown”; Paragraph 2 had simply permitted the order to be served on people “demonstrating at or in the vicinity of the Store“.

ii) Paragraph 3 permitted alternative service of the injunction order on the two stated email addresses.

iii) CPR 6.3(1) sets out the methods of permissible service for a Claim Form. Without an order for alternative service, the only method by which the persons unknown could be validly served was by personal service in accordance with CPR 6.5.

iv) Although the Application notice did seek such an order, no order permitting alternative service of the Claim Form was made by the Court in the order of 29 November 2017 or subsequently. In consequence, there has been no compliance with CPR 6.15(4), which requires an order for alternative service to specify: (a) the method or place of service; (b) the date on which the claim form is deemed served; and (c) the period for (i) filing an acknowledgement of service; (ii) filing an admission; or (iii) filing a defence.

    1. Although the Order of Teare J did not expressly state that there had been any consideration of s.12 Human Rights Act 1998 (set out in [65] below), Mr Buckpitt confirmed, and I am satisfied, that the Court was referred to and considered its provisions. The Court will always require to be strictly satisfied that the requirements of s.12 have been observed. Applications for injunctions against “persons unknown” are no exception. In a protestor case, there are many “practicable steps” (s.12(2)(a)) that can be taken to notify at least some of the respondents of the application for an injunction. The most obvious expedient being notices informing protestors of the intention to apply for an injunction. Such notices could provide details of the time and place that the application together with details of the order the applicant intends to ask the Court to make.
    2. The Claim Form and Particulars of Claim have been served only in the following ways:

i) by email on 29 November 2017 to the Second Defendant;

ii) by email on 29 November 2017 to “contact@surgeactivism.com”; and

iii) by email on 3 December 2017 to Luke Steele (who had contacted the Claimants’ solicitors and asked for a copy). Mr Steele appears to have been sent the documents for his information, rather than by way of service upon him as one of the “persons unknown”.

  1. The Claimants served the Order of 29 November 2017 and the Application Notice seeking the injunction and evidence in support by sending them to the two email addresses (see [23(ii)] above). Because of the size of the attachments, Mr Hayes sent the documents using Mimecast. Although he received confirmation that PETA had accessed the documents on 4 December 2017, no similar confirmation of receipt was received in respect of service on contact@surgeactivism.com. There is therefore no evidence confirming that the Claim Form has been served upon, or has come to the attention of, any person falling within the class of persons unknown who are the First Defendants….
    1. At the hearing of the Claimants’ Application and in response to my questions, Mr Buckpitt gave me information about the number of people who had been served with the injunction and how many of them had been identified by the Claimants. Following the hearing, this evidence has been set out in a further witness statement from Mr Hayes. The evidence is:
i) Between 29 November 2017 and 19 January 2019, entries in a “security log” recorded that 385 copies of the injunction have been served. That may not represent the actual number of people who have been served because it appears some have been served more than once.
ii) No copies of the Claim Form or a Response Pack have been served on any protestor.
iii) Of the 385 copies of the injunction that the Claimants have records of being served, 135 have been served in a way that enables the individual to be identified (e.g. from body-camera footage). Removing those who can be identified as having been served more than once, the total number of identifiable individuals served with the injunction is 121.
iv) Of those 121, the Claimants have identified 37 by name, although the Claimants believe that a number of the names are pseudonyms. The entries in the security log suggest that several of the protestors were ‘regulars’ and who were identified by name.
v) No attempt has been made by the Claimants to join any of these 37 individuals (or the larger group of 121) to this action whether by serving them with the Claim Form or otherwise. Mr Buckpitt told me at the hearing that the reason why this had not been done was the cost and inconvenience of doing so. He suggested that this might be welcomed by the putative defendants as they would then not be exposed to potential liability for costs. The effect, however, is that these proceedings have remained essentially uncontested.

THE JUDGE’S APPLICATION AS TO SERVICE OF THE CLAIM FORM

Service of the Claim Form
    1. For the reasons set out in paragraphs [24], [26]-[27] and [48], the Claim Form has not been validly served on any defendant in these proceedings. No order for substituted service has been made and there has been no service by any of the methods permitted by CPR 6.5. The Claim Form has only been effectively served on the Second Defendant (the organisation), in the sense that there is evidence that the contents of the Claim Form have come to the attention of the Second Defendant. The Second Defendant, in any event, positively sought to be joined to the proceedings, albeit the order joining the Second Defendant contained no directions for service of the Claim Form (see [36] above).
    2. The Claimants’ solicitor’s assessment of the issue of service of the Defendants (see [47] above) is flawed in two respects:

i) Whilst it may be correct that none of the defendants has filed a defence or acknowledgement of service, the failure validly to serve the Claim Form means that no defendant has been placed under any obligation to do so.

ii) The suggestion that defendants within “persons unknown” as the First Defendants were ‘added’ each time a copy of the injunction order was served on them is not correct. Only service of a Claim Form (by a permitted method) or an order dispensing with the requirement to serve the Claim Form can make someone a defendant to a civil claim. A person served with the injunction was bound by its terms and, subject to whether that person fell within the definition of “protestor”, may have fallen within the definition of the “persons unknown” identified as the First Defendants.

    1. In written submissions submitted after the hearing, Mr Buckpitt appeared to recognise that there had not been valid service of the Claim Form in accordance with the provisions of the CPR. However, he contended that an application for an order for alternative service had been included within the Claimants’ without-notice application for an injunction on 29 November 2017. At the hearing, the Claimants gave an undertaking to effect service by email of the Order the Claim Form and Particulars of Claim and application notice and evidence in support (see [22(ii)] above). Mr Buckpitt accepts that, he submits in error, the Order of 29 November 2017 provided only for alternative service of the Order and not the Claim Form (see [23] above). He contends that this error was a ‘slip’, albeit the fault lay not with the Court but was contained in the draft that was provided. He acknowledges that, for a valid order for alternative service to be made, the requirements of CPR 6.5(4) must also be observed (see [24(iv)] above). He argues that the 29 November 2017 Order should be amended under the ‘slip rule’ (CPR 40.12) to correct these defects.
    2. Although CPR 40 BPD §4.2 permits an application to correct an error in an order to be made informally, I am not prepared to make any on this basis for the following reasons:

i) A court will only grant an order for alternative service where it is satisfied that the proposed method of service can reasonably be expected to bring proceedings to the attention of the defendant – see [59(iii)] above. Service on the email address contact@surgeactivism.com could not reasonably have been expected to bring the proceedings to the attention of anyone other than the person who accessed that email address (or, at best, to the attention of others in the same group). There could be no reasonable expectation that this method would bring the proceedings to the attention of the wide class of person defined as the “persons unknown”. Although not known at the time the 29 November 2017 order was made, there is no evidence that sending the Claim Form (or any of the other documents) to that email address did lead to it coming to the attention of anyone (see [27] above).

ii) The ‘slip rule’ enables the Court to correct errors where orders do not properly reflect the orders made by the Court. There is an important distinction between orders that the Court did make, but were not correctly recorded, and orders a party considers the Court should have made but were not. The slip rule allows correction of the former, not the latter. On the available evidence, I cannot be satisfied that this was simply a slip. The order did not include provisions in compliance with CPR 6.15(4). I do not have a transcript of the hearing, but I have been provided with the solicitor’s note. The issue of alternative service of the Claim Form is not addressed. Mr Buckpitt submits that by accepting the undertaking regarding service (see [22(ii)] above), Teare J was satisfied that use of the “Surge Activism” email address was appropriate. I do not accept this. If the Court had addressed the issue of alternative service, then the requirements of CPR 6.15(4) would have been considered. That would have focused attention on the artificiality of service of the Claim Form via the proposed alternative method as an effective means of bringing the contents of the Claim Form to the attention of all those in the category of the “persons unknown”.

iii) Any application to amend the 29 November 2017 Order under the slip rule can only fairly be considered and determined with the benefit of a transcript of the hearing and, in light of CPR 40 BPD §4.4, arguably ought to be considered by Teare J.

  1. Mr Buckpitt’s fallback position was that the Court ought to dispense with service of the Claim Form on the First Defendants pursuant to CPR 6.16. I am not prepared to make any such order without a proper Application Notice. Given the principles identified in [59(iv)] above, it would appear to me that the Claimants would face significant obstacles in persuading the Court to grant any such order.
  2. There is a further issue that may need to be addressed by the Claimants. The period of validity of the Claim Form is four months from issue: CPR 7.5 (see [61] above). Prima facie, that period has expired. In his written submissions, Mr Buckpitt has acknowledged this issue. He contends, however, that the effect of the stay granted by the Order of 15 December 2017 was to suspend the operation of this 4-month time limit. I am sceptical that this is correct. A stay of proceedings is conceptually distinct from an extension of time that would otherwise be required under the rules.

DEALING WITH THAT LAST POINT: IT IS POSSIBLE FOR A STAY TO INCLUDE A STAY ON THE OBLIGATION TO SERVE THE CLAIM FORM

In Grant v Dawn Meats (UK) [2018] EWCA Civ 2212 the Court of Appeal held that an order staying an action also imposed a stay on the obligation to serve the claim form, see the discussion on the case here.