Methods of service when seeking interim injunctions against persons unknown

A recent landmark decision may allow novel and unusual methods of service in welcome news for landowners who seek to prevent trespassing by persons unknown, write Helena Davies, Oskar Musial, Laura Tweedy and Gemma de Cordova.

In this article we explore the court’s findings in Anglo International Upholland Ltd v Wainwright [2023] 5 WLUK 613 about service of the application and injunction order, which includes a novel permission for service by named defendant on the other defendant (persons unknown) and by way of a printed QR code.

In this case, the High Court granted a quia timet interim injunction against “urban explorers” who were trespassing on our client’s abandoned seminary building in Lancashire.

The importance of service

A claimant who comes before a court with an application for the grant of an interim injunction is asking the court to make a draconian order. After all, the failure to comply with an injunction can, ultimately, lead to criminal sanctions — including imprisonment. For that reason, courts take very seriously how and when the persons affected are made aware of the application for the injunction and in turn the service of the injunction itself.

Service on named defendants is fairly straightforward following the Civil Procedure Rules (CPR), especially if their address is known. If the address is unknown, a claimant may have to go through the effort of finding the named defendant’s address (for example, via private investigators). 

A problem occurs where the named defendant doesn’t have a fixed address. In AIUL v Wainwright and Persons Unknown, the private investigators contracted by the claimant could only locate the mobile phone number of the named defendant and so had to arrange to meet them at a pre-arranged location to affect service. Of course, this required cooperation by the defendant, which may not always be forthcoming.

For persons unknown — which includes unidentified persons who may not yet have committed the act prohibited by the injunction — the ordinary form of service can’t be carried out because the people (and their address) may not be known. Instead, the claimant must obtain an order for service by alternative means.

Service on persons unknown

The onus is on the claimant to persuade the court that the alternative methods it proposes for service are appropriate and reasonable. 

Service comes in two stages. First, the claimant must serve the application for the interim injunction. Second, the claimant must serve the interim injunction order (once granted by the court).

An application for interim injunction must therefore include an application for alternative service of the application on persons unknown, pursuant to CPR 6.15 and/or CPR 6.27. This will need to be supported with evidence that states which alternative means of service are proposed and why the claimant believes that the application documents are likely to reach the persons to be served by the method proposed. 

The application for alternative service will, in effect, be retrospective — as the claimant will need to serve the application before the court hearing. The interim injunction order will then dictate how it’s to be served on persons unknown. The means of service used for the application and the interim injunction order will likely overlap. 

Common methods of alternative service in cases that involve trespass include fixing copies of the application and order in prominent positions around the site subject to trespass and advertising the injunction online (via social media, websites, publications, etc).

Some recent examples of reported cases in which courts permitted alternative service include:

• In Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2003] EWHC 1783 (Ch), the court permitted alternative service by posting notices around the perimeter of the claimant’s waste incinerator sites, which were being trespassed upon by protestors.
• In UK Oil and Gas Investments Plc v Persons Unknown [2018] EWHC 2252 (Ch), environmental protesters engaged in various activities at the claimant’s exploration sites, including trespass and interference with access and private rights of way. The claimant applied for an interim injunction against categories of persons unknown. Alternative service was permitted by a variety of methods including posting on the websites of the groups who were interested in the claim and sending direct messages on social media. 
• In HS2 v Persons Unknown [2022] EWHC 2360 (KB), the claimants applied for an interim injunction to restrain trespass and nuisance by persons unknown along the entire length of the HS2 route. Permitted service in this case involved advertising the injunction order in newspapers, the HS2 website, social media and libraries along the HS2 route.

Importantly, the courts have shown willingness to explore novel methods of alternative service where claimants are able to demonstrate that such methods are — given the particular circumstances of their cases — appropriate and reasonable. For example, in the non-trespass case of D’Aloia v Persons Unknown [2022] EWHC 1723 (Ch), the court permitted service by embedding the documents in the blockchain via a non-fungible token, as the defendant was more likely to be put on actual notice of the proceedings this way. 

That’s the key point — the court is concerned with actual notice. 

Service by a defendant on others

In AIUL v Wainwright and Persons Unknown, the claimant obtained permission for alternative service by two novel means. 

First — at the claimant’s request and before the hearing of the interim application — the named defendant made a post on his social media page notifying his followers of the existence of the claimant’s application and including a link to a shared online space containing the application documents. 

The claimant had demonstrated in its application that the social media page was being successfully used by the named defendant to encourage further trespass. The page had nearly ten thousand followers. Much like in D’Aloia v Persons Unknown, potential persons unknown were more likely to be put on actual notice of the proceedings by means of this post.

The Judge permitted this as one of the methods of alternative service on persons unknown pursuant to CPR 6.15 and 6.27. As such, the claimant could rely on one defendant (the named defendant) serving the application on another defendant (persons unknown).

Service by QR code

Second, the Judge permitted service of the injunction order by placing notices around the perimeter of the site in the form of QR codes, which — once scanned by a smartphone — would lead to the shared online space in which the injunction order (and all other application documents) could be viewed and downloaded. The claimant therefore didn’t have to print all the documents (totalling several hundred pages) and place them around the site, which is the usual form of this type of alternative service. As such, a more streamlined and modern version of the classic type of service seen in the Hampshire Waste Services case was permitted.

These methods of service were used by the claimant in conjunction with those methods previously seen in UK Oil and Gas Investments Plc v Persons Unknown and HS2 v Persons Unknown — i.e., sending messages to social media groups and publicising the injunction on the claimant’s website. In addition, the Judge also permitted service of the order on the named defendant by email.

Consequences for landowners

Landowners who are considering interim injunctions against persons unknown need to be aware of the importance of ensuring effective service without shying away from novel and unusual methods. 

The crucial task is demonstrating to the court that the methods of alternative service employed by the claimant are appropriate and reasonable in the circumstances — and ensuring that the evidence in support of this is clear and strong. 

This judgment adds two new methods of alternative service to the existing arsenal and demonstrates that courts are willing to consider the service of interim injunctions holistically.

Helena Davies is a partner and Oskar Musial is a solicitor at Brabners. Laura Tweedy and Gemma de Cordova are barristers at Gatehouse Chambers.

See also: Granting injunctions against ‘newcomers’ — practical guidance from property litigators - The Supreme Court’s decision in Anglo International Upholland Ltd v Wainwright [2023] 5 WLUK 613 confirmed the court’s power to grant injunctions against so-called ‘newcomers’. In the second of two articles, Helena Davies, Oskar Musial, Laura Tweedy and Gemma de Cordova consider the recent developments in newcomer injunctions and how that was dealt with in Upholland.