On the 31st of July 2023, the Irish Supreme Court handed down judgment in proceedings which arose from the efforts of Pepper Finance Corporation (Ireland) DAC (‘Pepper’) to obtain possession of two properties. Although the case was effectively moot due to the sale of the properties, the Court had granted leave to appeal on the basis that the matter raised an issue of general public importance and considered that the resolution of these proceedings with an authoritative pronouncement thereon remained warranted. Hogan J delivered the sole judgment in the matter and considered the jurisdiction to grant injunctive relief against persons unknown and the contempt jurisdiction of the High Court. While stressing the ‘exceptional’ nature of the former jurisdiction, the judgment expands on the significant ‘principled and pragmatic reasons’ for its continued exceptional nature.
Historically, the inherent jurisdiction of the courts to grant relief against ‘Persons Unknown’ was utilised where the intended targets of an action were identifiable by their conduct but could not be named individually. Illustratively, the jurisdiction enables a crowd trespass to be taken against protestors where exhaustively naming each member of the group would be nigh impossible due to its ever-changing nature but they can be identified by conduct. It has since taken on a contemporary utility in matters such as online defamation or data hacking where, without this inherent jurisdiction, a case would fail ‘not because of their intrinsic merits, but for want of an identified or identifiable defendants’ [49]. Hogan J was emphatic in his pronouncement that ‘the administration of justice should not be placed at the mercy of those who would resort to anonymity and evasion as a ploy to hand trip the efforts of plaintiff’ [52].
Therefore the jurisdiction is characterised as a necessary one but it remains exceptional in light of the commitment to the open administration of justice in Article 34.1 of the Constitution. Departure from this is confined to special and limited cases, with the decision of Laffoy J in Roe v Blood Transfusion Service Board [1996] 3 IR 67 stressing that this rule allowed the general public to see that justice was done. Extending this rationale, in the Court of Appeal judgment which was the subject of this appeal, Whelan J stressed that “it is incumbent upon a plaintiff to take reasonable steps to ascertain the names and identities of proposed defendants if justice is to be administered in public”. It was established that Pepper became aware of the names of all occupants and The failure of Pepper to seek amendment to the title of the proceedings once they became aware of the names of all occupants appeared to lead Whelan J to characterise their continued use of the jurisdiction as legally ineffective. Hogan J overturned this apparent finding, stressing that while the conduct of Pepper was unsatisfactory it did not provide grounds to set aside the proceedings once they were otherwise properly pursued. He did note that this was a marginal case for the use of the jurisdiction, as the occupants of the properties were stable and identifiable, and warned against regarding it as a benchmark.
However, Hogan J identified that rather than falling afoul of the principled reasons justifying the existence and utilisation of this jurisdiction, Pepper were caught by the ‘complications of enforcement at a later stage in the proceedings’ [56]. They failed to effect personal service of an order requiring inter alia the defendants to surrender possession and control of the properties. They further failed to effect personal service of a penally endorsed order as required by Order 41, r. 8 of the Rules of the Superior Courts. These were deemed fatal to Pepper’s motion to have the occupants attached and committed for a failure to comply with the original order. While recognising the potential difficulties in effecting personal service for orders granted under a jurisdiction concerning persons unknown, Hogan J dismissed the appeal.
Hence, while illustrating the necessity of this jurisdiction, Hogan J emphasised that the circumstances in which it would be necessary were limited and exceptional. The practical difficulties inhered by the nature of the jurisdiction and associated confusion and uncertainty surrounding potential orders under it helped to reinforce this message. Indicatively, the ‘persons unknown’ jurisdiction is the subject of a forthcoming judgment from the United Kingdom Supreme Court which will consider inter alia the confusion and uncertainty caused by the extensive reach of injunctions issued under this jurisdiction.
Click here for the judgment in Pepper Finance Corporation (Ireland) DAC v Persons Unknown [2023] IESC 21.