SERVING PROCEEDINGS ON “PERSONS UNKNOWN”: AN ONGOING ISSUE – WITH NO EASY ANSWER

In the course of his judgment in  The London Borough of Hackney v Grant& Ors [2021] EWHC 2548 (QB) Mr Justice Lavender considered the issue of service on persons unknown.

WEBINAR ON SERVICE OF THE CLAIM FORM

On the 24th September 2021 I am giving a webinar looking at the key cases in relation to problems with service of the claim form over the previous 12 months. Booking details are available here.

THE CASE

The claimant local authority was seeking injunctions against various persons who had camped on Hackney Downs, there were 31 defendants. An interim injunction had been obtained and “served”.   The judge refused a further injunction and discharged the earlier order.  The judgment considered the issue of service of proceedings, although the application was not determined on this issue.

SERVICE OF THE INTERIM INJUNCTION

The order  granting the injunction dealt with service of the interim injunction.
    1. An order was made dispensing with the requirement in CPR 81.8 that the interim injunction be served personally and providing instead that it could be served:
(1) by placing it at all official entry and exit points to the parks and open spaces in the borough;
(2) by posting copies to Campaign for Truth and Justice at the address shown on Mr Grant’s letter;
(3) by posting copies on Hackney’s Facebook and Twitter accounts and on Hackney’s website; and
(4) by emailing copies of the interim injunction, the claim form and other documents to those defendants whose email addresses were known.
(2)(c)(vi) Service of the Claim Form and the Interim Injunction
    1. Hackney served the claim form and the interim injunction in the manner provided for in the interim injunction. In addition, the interim injunction was served personally on Mr Grant and was served on some defendants by direct message on Instagram.
(2)(c)(vii) No Response from the Defendants
  1. None of the Defendants filed an acknowledgment of service or any written evidence or submissions.

SERVICE OF THE CLAIM FORM AND OTHER DOCUMENTS

The issue arose as to whether personal service of the order should be dispensed with.

(3)(b) Service
    1. Hackney invited me to dispense with personal service of my order for the purposes of CPR 81.8 and to direct that the order be served:
(1) by post, in the case of Campaign for Truth and Justice Limited;
(2) by email, in the case of those defendants whose email address was known;
(3) by sending a link to the order via direct message on Instagram or other social media platform in the case of those 10 defendants whose Instagram account was known; and
(4) by posting a copy of the order on Hackney’s website and Facebook and Twitter accounts.
    1. I did not consider that this latter alternative was an acceptable substitute for personal service of my order and Ms Bhogal did not contend otherwise. Indeed, it transpired that, although the drafting of the order suggested otherwise, Hackney had not intended that this should be the only method of effecting service of my order on an individual defendant. I directed Hackney to post a copy of my order on its website and Facebook and Twitter accounts, but I did not direct that this would constitute service of my order.
    1. There were several defendants on whom Hackney was not currently able to serve my order, because it did not have a postal address, email address or Instagram account name for those defendants. Hackney proposed that I should deal with those defendants by making the following order:

“Any Defendants who have not been served by post, email, Instagram, or other social media platform, or where personal service has not been effected upon them cannot be committed for an alleged breach of this order until 24 hours after service of the sealed order, sealed power of arrest and bundle of documents as per the index at Page 18a is effected. Such service shall be effected by personal service, post, email, WhatsApp, or direct message via Instagram or other social media platform, and shall be deemed to constitute adequate steps to constitute service of documents other than the Claim Form pursuant to CPR 6.27 and CPR 81.5.”

    1. I did not consider that it was appropriate to make such an order, which would have amounted, in effect, to an order permitting service by unspecified electronic means on unspecified defendants, made without any evidence to support it.
(4) Decision
    1. Given that the stated purpose of this application was to explore what was appropriate in the light of the judgment in Barking and Dagenham, I cannot help observing that Hackney does not appear to have heeded everything which Nicklin J said in that judgment. For instance, the second defendant to Hackney’s possession claim was “Persons Unknown”, despite what Nicklin J said in paragraphs 49 to 52 of his judgment about the need to describe “Persons Unknown”.
(4)(a) Service of the Claim Form
    1. Moreover, despite what was said by Nicklin J in paragraphs 45 to 48 of his judgment in Barking and Dagenham, the provision in the interim injunction permitting service of the claim form by posting copies of the interim injunction and power of arrest “in various locations in and around” the Borough of Hackney and on Hackney’s Facebook and Twitter accounts does not appear to have been one which could reasonably be expected to bring the proceedings to the notice of all of the defendants:
  1. Indeed, I do not see how posting copies of the interim injunction and the power of arrest anywhere could be said to amount to service of the claim form by an alternative means. If that is right, then the claim form has not been served on many of the defendants. However, I did not raise this point at the hearing and so I do not base my decision on it.