Future applications for permission to serve a claim form on ‘persons unknown’ out of the jurisdiction in claims in the media & communications list should not be dealt with without a hearing, a High Court judge has ruled.
The case in Anton Chirkunov v Person(s) Unknown & Anor centres on a data protection claim in which vehicle-for-hire company Wheeley CEO Chirkunov alleges GDPR breaches arising from the publication of two articles published on separate websites. The defendants were identified in the claim form as Person(s) Unknown.
The claim form did not state the address of either defendant, only an email. No effective communication with the email addresses had been made. The ‘overwhelming likelihood’ is that the defendants are outside England and Wales.
The Honourable Mr Justice Nicklin said Chirkunov should have pursued a ‘very effective’ Norwich Pharmacal order, which can order the disclosure of information from a third party who has unwittingly become involved in wrongdoing, but Chirkunov ‘thought that he could avail himself of a simple short-cut – avoiding the cost of further investigations to identify the defendants – by the expedient of issuing a claim against ‘Persons Unknown’.
The judgment said Chirkunov should have pursued pre-action investigations and Norwich Pharmacal orders ‘before launching proceedings’ against Persons Unknown.
Refusing Chirkunov’s application for permission to serve the claim form on the defendants out of the jurisdiction, the judge said: ‘If the claimant can provide further and better evidence as to the location of the defendants, then it will be open to him to make a further application.’
The judge suggested future applications for permission to serve a claim form on Persons Unknown out of the jurisdiction in claims in the media & communications list should not be dealt with without a hearing, ‘unless a master or judge directs that a hearing is not necessary’.
Judges in charge of the media & communications list were consulted about the suggestion and have ‘endorsed it as the practice now to be followed in the MAC list’.
Nicklin added: ‘Litigation against “Persons Unknown” is not the norm, it is exceptional. The issues raised on an application to serve a claim form on “Persons Unknown” outside the jurisdiction mean that it is unlikely that it can be fairly determined without the court having the opportunity properly to explore the factors that must be considered on such an application. A hearing, for which a skeleton argument will be provided in advance, will ensure that the issues are properly considered.’
