Hong Kong: Fracking Fracas – English Court Of Appeal Gives Guidance On Injunctions Against Persons Unknown

Last Updated: 30 May 2019
Article by Byron Phillips and Nigel Sharman

When can the courts issue injunctions against people who cannot be identified but who they suspect may be intending to engage in a wrong?

The English Court of Appeal in Joseph Boyd & Ors v Ineos Upstream Limited & Ors [2019] EWCA Civ 515 has given important guidance on when the Court may issue injunctions against persons unknown to prevent the commission of a wrong. In that case, injunctions were granted at first instance against four out of five groups of defendants, described as "persons unknown" and thought likely to become involved in unlawful protests against "fracking" (shale gas exploration) at sites selected by the Ineos Group of companies. An appeal was brought by interested persons and groups including the lobbying group 'Friends of the Earth', who, though not the subject of the injunctions, had been permitted to intervene in the action.

A wizard wheeze

Mr Justice Longmore, giving judgment on behalf of the Court of Appeal (Lord Justice David Richards and Lord Justice Leggatt concurring), explained that since the advent of the Civil Procedure Rules, there has been no requirement to name a defendant in a claim form and that orders had been made against "persons unknown" in appropriate cases.

The first such case was the well-known 'Harry Potter' case Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] 1 WLR 1633, in which unknown persons had illicitly obtained advance copies of "Harry Potter and the Order of the Phoenix" and were trying to sell them to newspapers. Sir Andrew Morrit V-C made an order against persons who had offered various publishers copies of the book and persons who had physical possession of a copy of it.

Counsel for the respondents cited Lord Sumption's comments in the Supreme Court judgment Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, to suggest an injunction was inappropriate. In that case, Lord Sumption distinguished between "anonymous defendants who are identifiable but whose names are unknown" and "anonymous defendants who cannot even be identified", such as most 'hit and run' drivers. Those in the second category could not be sued because to do so would be contrary to the fundamental principle that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as would enable him to be heard.

Mr Justice Longmore however thought that Lord Sumption's comments may have been taken out of context. It was "too absolutist" to say that a claimant can never sue persons unknown unless they are identifiable at the time the claim form is issued. As a consequence, the Court of Appeal held there was "no conceptual or legal prohibition on suing persons unknown who are not currently in existence when they commit the prohibited tort".

Caution – injunction ahead

As a general rule, courts should be "inherently cautious" about granting injunctions against unknown persons. Mr Justice Longmore framed the requirements as follows:

  • There must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
  • It is impossible to name the persons who are likely to commit the tort unless restrained;
  • It is possible to give effective notice of the injunction and for the method of such notice to be set out in the order;
  • The terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;
  • The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do; and
  • The injunction should have clear geographical and temporal limits.

How slow is slow?

Whilst the Court of Appeal found there was no issue about the first three requirements in the present case, the order given by the Judge at first instance in respect of the remainder was more problematic. As drafted, the Judge's orders in relation to public rights of way and conspiracy to cause damage by unlawful means, were too wide and insufficiently clear. Case in point – the orders banned "slow walking", but how slow is slow? The concept of "unreasonably obstructing the highway" was a question of fact and degree that was incapable of being defined in advance. The "citizen's right of protest" was not to be diminished by advance fear of committal except in the clearest of cases.

The Court of Appeal discharged the injunctions against the third and fifth defendants and dismissed the claims against them. Injunctions against the first and second defendants were maintained, pending remission to the Judge to consider whether interim relief should be granted in light of section 12(3) Human Rights Act 1998 (concerned with the right to freedom of expression) and, if so, whether such relief should be time-limited.

Who is who in Hong Kong?

In Hong Kong, similar principles were considered by Mr Justice Godfrey Lam in University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd (No 2) [2016] 4 HKLRD 113. The University  brought an action against "person or persons unknown who has or have appropriated, obtained and/or offered or intend to offer for sale and/or publication" confidential information arising out of a governing body meeting set to choose a new Vice-President and Pro-Vice Chancellor.

Citing Bloomsbury, Lam J said that it was now established that a writ of summons can be issued against a defendant without naming them, provided that the description is sufficiently certain so as to identify both those who are included and those who are not.

Given the nature and quality of the information involved, Lam J considered that a final injunction was a proportionate and necessary restriction on the right of free speech. The Court however refused to grant the University's application for a declaration that the "unknown persons" cited as defendants were acting in breach of their duty of confidence insofar as they were publishing or communicating the information without the University's consent. The declaration sought was hypothetical and artificial and served no real purpose.

Together, the cases demonstrate the courts' determination both to prevent possible wrongs being committed whilst maintaining the right to freedom of expression within proportionate bounds.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions