The recent decision of Chirkunov -v- Person(s) Unknown [2024] EWHC 3177 (KB) provides useful guidance on the emerging practice of litigating against ‘Persons Unknown’.
In this case, the Claimant applied to serve a Claim Form against ‘Persons Unknown’ outside the jurisdiction. Nicklin J declined the application, as the Claimant had failed to demonstrate that England and Wales was “clearly and distinctly” the appropriate forum. In doing so, Nicklin J emphasised that litigation against ‘Persons Unknown’ is “not the norm; it is the exception” and criticised the Claimant for commencing proceedings without first pursuing reasonable avenues of inquiry (such as Norwich Pharmacal applications) to identify the identity of the unknown persons.
In an important postscript to this decision, Nicklin J advised that, in future cases in the Media & Communications List, applications for permission to serve a Claim Form on ‘Persons Unknown’ outside England and Wales should not be determined without a hearing, unless a Master or Judge directs that a hearing is not necessary.
Background
Anton Chirkunov is the founder and Chief Executive Officer of Wheely Ltd, a luxury ride-hailing service. Mr Chirkunov alleged that two online articles about him breached the UK General Data Protection Regulations and commenced proceedings against the unknown persons responsible for publishing these articles.
In his Particulars of Claim, Mr Chirkunov alleged that the “wrongful processing” of his personal data had caused him “serious distress and anxiety and damaged his autonomy and reputation.” He sought erasure of his personal data, compensation, and a declaration that the personal data in issue was inaccurate.
Chirkunov -v- Person(s) Unknown [2024] EWHC 3177 (KB)
This decision addressed two applications that Mr Chirkunov brought alongside his substantive claim, namely:
- Permission to serve the Claim Form outside the jurisdiction (pursuant to CPR 6.36 and 6.37); and
- Permission to serve the Claim Form by an alternative method (pursuant to CPR 6.15).
Mr Chirkunov initially asked the Court to make these orders without a hearing. Steyn J refused to do so, directing that the applications be determined a hearing before a Judge of the Media & Communications List. Nicklin J heard the applications on 21 November 2024.
Permission to serve outside jurisdiction
In civil proceedings, it was for a long time thought that defendants must be named in the claim form and/or an application for injunctive relief. Way back in Friern Barnet Urban District Council v. Adams and Others [1927] 2 Ch. 25, there was an attempt to serve proceedings on “the owners of certain lands adjoining Alexandra Road, Friern Barnet, more particularly described in the endorsement hereon whose names and addresses are not known to the plaintiffs.” The attempt was described as a ‘bold experiment’ but failed; defendants must be named.
The position changed in Bloomsbury Publishing Group Limited & J K Rowling v. News Group Newspapers Ltd & Person or Persons Unknown [2003] EWHC 1205 (Ch). The High Court declined to follow Friern Barnet on the basis that the Civil Procedure Rules had changed the landscape. The test became whether a defendant was sufficiently described so as to be identifiable (see para [21]).
The above approach was endorsed by the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, which comprehensively sets out the requirement for the identification of persons against whom a claim is made. Lord Sumption said at paragraph [13]:
“13. In approaching this question, it is necessary to distinguish between two kinds of case in which the defendant cannot be named, to which different considerations apply. The first category comprises anonymous defendants who are identifiable but whose names are unknown. Squatters occupying a property are, for example, identifiable by their location, although they cannot be named. The second category comprises defendants, such as most hit and run drivers, who are not only anonymous but cannot even be identified. The distinction is that in the first category the defendant is described in a way that makes it possible in principle to locate or communicate with him and to know without further inquiry whether he is the same as the person described in the claim form, whereas in the second category it is not.”
Under CPR 6.37(1)(c), an application for permission to serve a Claim Form outside of the jurisdiction must set out “the defendant’s address or, if not known, in what place the defendant is, or is likely, to be found”. Mr Chirkunov said that he was unable to comply with this requirement because the location(s) of the putative Defendants could not be established.
Mr Chirkunov argued that CPR 6.37(1)(c) was merely a “procedural requirement” and that the Court could simply waive compliance. Supporting this position, Mr Chirkunov cited several cases in which the Court had granted permission to serve a Claim Form out of the jurisdiction where the location of the defendant was unknown (see, for example: PML -v- Persons Unknown [2018] EWHC 838 (QB); Linklaters LLP -v- Mellish [2019] EWHC 177 (QC); Osborne -v- Persons Unknown [2023] EWHC 39 (KB); Armstrong Watson LLP -v- Persons Unknown [2023] 4 WLR 41).
Notwithstanding these authorities, Nicklin J did not accept Mr Chirkunov’s position, stating that “it appears that in none of those cases was any attention paid to CPR 6.37(1)(c), so they do not provide much assistance …” (at [87]). Nicklin J noted that claims against ‘Persons Unknown’ are still something of a recent invention in civil litigation in England & Wales (at [88]):
Although the number of claims that are brought against ‘Persons Unknown’ appears to be increasing, some of the procedural and jurisdictional issues are still being worked out. The Supreme Court’s decision in Wolverhampton City Council -v- London Gypsies & Travellers [2024] AC 983, whilst important, is not likely to be the last word on some of the complexities of litigating against ‘Persons Unknown’. That this appears to be the first case in which any attention has been paid to compliance with CPR 6.37(1)(c) in extra-territorial ‘Persons Unknown’ litigation rather bears that out.
Ultimately, Nicklin J declined to give a final view about the effect of non-compliance with CPR 6.37(1)(c).
Assessing whether England & Wales was “clearly and distinctly” the appropriate forum in this case, Nicklin J said (at [94]):
Of course, litigation sought to be pursued against ‘Persons Unknown’ may make it more difficult to ascertain the domicile/location of the defendant(s), but it does not relieve the party of the obligation to make reasonable efforts to try.” Litigation against ‘Persons Unknown’ is not the norm; it is the exception: Birmingham City Council -v Afsar [21(1)]. The Norwich Pharmacal jurisdiction exists to assist parties in their efforts to attempt to identify the ultimate alleged wrongdoer and enable proceedings to be brought against him/her. Even if Norwich Pharmacal orders do not ultimately enable the claimant to name the intended defendant(s), the information and evidence that is obtained is likely to assist with the issues that arise on applications for permission to serve a Claim Form out of the jurisdiction and/or by alternative means.
Going further, Nicklin J held that a claimant who decides, unilaterally, that it will be too costly or time-consuming to pursue reasonable avenues of inquiry – such as Norwich Pharmacal applications – may find that “the paucity of evidence that they can provide will make it difficult to persuade the Court to grant orders that will permit service of the Claim Form on “Persons Unknown” out of the jurisdiction and by alternative means” (at [94]).
That was precisely the position in Mr Chirkunov’s case. Nicklin J rejected Mr Chirkunov’s suggestions that further investigations into who was responsible for the publication of the two Articles would have been “disproportionate”, concluding that (at [95]):
Identification of the defendant against whom a party wants to bring a civil claim is not the sort of inconsequential detail the ascertainment of which can be dispensed with if it proves to be too expensive. The proper identification of the defendant and his/her location is fundamental, not only so that the Court can make a proper assessment of whether s/he is, or should be, answerable to the Court’s jurisdiction over the claimant’s claim, but so that s/he can be served with the proceedings. On the evidence presented on these applications, it is my assessment that the Claimant’s efforts thus far to identify the Defendants and their location has been perfunctorily inadequate. The evidence does not persuade me that England and Wales is clearly the appropriate forum and that I should exercise my discretion to permit service of the Claim Form on the Defendants out of the jurisdiction.
Permission to serve the Claim Form by an alternative means
In support of his application to serve by alternative means, Mr Chirkunov plead that the individuals behind the news articles – whoever they are – had gone to “extreme and sophisticated lengths to conceal their identities” and that it would be “highly unlikely” to be able to serve them personally.
Nicklin J commented that, in litigation sought to be pursued against ‘Persons Unknown’, applications for alternative service orders are likely to be essential, but the principles are the same: LB Barking & Dagenham -v- Persons Unknown [2021] EWHC 1201 (QB) [31]- [34], [43]-[48], [164]-[166]. On the evidence provided, Nicklin J refused the application for an alternative service order on the grounds the proposed method of service – by sending the Claim Form to the specified email addresses – could not reasonably be expected to bring the Claim Form to the attention of the Defendants (at [110]).
Conclusion
Having refused Mr Chirkunov’s applications, Nicklin J commented that applications to serve ‘Persons Unknown’ should involve a court hearing, as this will allow the Court to properly ventilate the factors that must be considered. A skeleton argument should also be provided in advance.
For this reason, Nicklin J said that “future applications for permission to serve a Claim Form on ‘Persons Unknown’ out of the jurisdiction in claims in the Media & Communications List (“MAC List”) should not be dealt with without a hearing, unless a Master or Judge directs that a hearing is not necessary.” (at [117]). Finally, Nicklin J confirmed that he had “consulted the Judges in charge of the MAC List”, who “endorsed it as the practice now to be followed in the MAC List” (at [118]).
This decision serves as a cautionary tale for prospective claimants. Before commencing proceedings against ‘Persons Unknown’, a claimant should first attempt to identify the unknown persons. In many cases, this will involve a Norwich Pharmacal order, which can be obtained against ‘Persons Unknown’. If a claimant instead rushes straight to litigation, they might well falter at the first hurdle of serving the Claim Form.
