Bringing contempt applications for injunctions against persons unknown

Melanie Dirom examines the lessons to be learned from a case brought against a lawyer, in a contempt application against "persons unknown".

Following on from our speed read in January this year on injunctions against “Persons Unknown”, the case of MBR Acres v McGivern [2022] EWHC 2072 (QB) provides guidance on bringing contempt applications for such injunctions.

Background

In August 2021, MBR Acres, an alleged puppy farming company, had issued proceedings seeking interim and final remedies against those protesting about their activities. Amongst others, the claim (after having been varied) was framed against “persons unknown”. MBR Acres were successful in obtaining an order for alternative service of the claim form on “persons unknown” by affixing copies of the claim form, injunction application notice and draft order in a transparent envelope on the gates of their land and in a prominent position on the grass verge at the front of that land and later on a noticeboard opposite their premises. The documents were also required to be accompanied by a covering letter in a specified format.

The injunction restricted “persons unknown” from entering into an exclusion zone around MBR Acres' site, parking any vehicle or leaving any item in the exclusion zone, or approaching or obstructing the path of any vehicle directly entering or existing the zone.

Facts

A contempt application was made by MBR Acres against McGivern for alleged breaches of the injunction order. They claimed she entered an exclusion zone outside the MBR Acres facility whilst parking her car and talking to protestors, and that she had also blocked two cars that were trying to leave the site. They contended that she had brought herself within the definition of “persons unknown”, claiming that she was deemed to have been served with the injunction given that it was posted on the noticeboard opposite their site. MBR Acres also alleged that McGivern must have had knowledge of the injunction and its terms at the time of the breach given that she was assisting a number of protestors through her pro bono work, and she had been shown on CCTV standing in close proximity to the noticeboard.

McGivern, a solicitor who worked primarily in criminal litigation, contested the contempt application. Firstly, she stated that MBR Acres had failed to comply with the alternative service order, meaning the injunction had not been properly served. Secondly, whilst accepting that she had inadvertently entered the exclusion zone, McGivern stated that as she had visited the site in her professional capacity, with no actual knowledge of the injunction or its terms, and therefore the application should be dismissed. McGivern also noted that she would never have knowingly breached an injunction, given that it could jeopardise her career and reputation, and she could lose her home.

Judgment

The contempt application was dismissed and labelled as “totally without merit”, with the High Court holding that MBR Acres had failed to fully comply with the order permitting alternative service of the injunction on “persons unknown”. The High Court found it difficult to understand their motives in pursuing McGivern, and it was noted that they failed to send any form of letter before action to McGivern giving her the opportunity to respond.

The High Court were highly critical of MBR Acres for attempting to get McGovern imprisoned. They stated that the case bordered on being “vexatious”, and that the application would have failed regardless as it was held that McGivern had no knowledge of the injunction’s terms at the time of the breach, and the breaches were “trivial or wholly technical”. The High Court also noted that it had been suggested that she was only pursued because she was a lawyer helping some of the protestors.

Reflections

The case highlights that there still remains a number of unresolved procedural uncertainties in relation to the operation of “persons unknown” injunctions. Whilst injunctions can be granted against “persons unknown”, points that are worth noting from this case are:

• Orders for alternative service must be strictly complied with.
• Courts do not grant injunctions to parties in litigation to be used as a weapon against those perceived to be opposed.
• As happened in this case, a claimant who brings a frivolous and vexatious claim can be subject to an order requiring it to obtain permission of the court before contempt proceedings against “persons unknown” in the injunction.
• Claimants should take stock as to the prospect of success of any contempt application and, particularly, whether there is a real prospect of the court imposing any sanction for the alleged breaches

Melanie Dirom is a Director at Ward Hadaway.