[reposted from my LinkedIn account]
Chirkunov v Person(s) Unknown & Ors [2024] EWHC 3177 (KB)
This is an important, and quite withering, judgment from Mr Justice Nicklin, which ends with a suggestion that from now on 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. The judgment records that, before hand down Nicklin J consulted the Judges in charge of the MAC List and they have endorsed his suggestion as the practice now to be followed in the MAC List.
The judgment is on an application to serve, out of the jurisdiction, a data protection claim on two persons unknown (the publishers of two websites said to infringe the data protection rights of the claimant). The claimant initially applied for orders to be made with a hearing, but Mrs Justice Steyn and gave directions for there to be a hearing.
Nicklin J was clearly unimpressed by the limited efforts the claimant and his lawyers had made to identify/locate the defendants, noting that the Norwich Pharmacal procedures had been available to the claimant, and concluded that “the Claimant has simply chosen not to pursue several avenues of investigation, including applications for Norwich Pharmacal relief. The basis for this decision is unpersuasive and unimpressive. On the evidence that has been provided, I am left with a very clear impression that the Claimant 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’”.
For this and other reasons the judge was also unwilling to give permission to serve out on persons unknown. Although such litigation can serve a purpose in some blackmail/cyber attack cases, for instance to “obtain interim remedies which can be used to counter the defendant’s threat to publish information that forms the basis of the blackmail/extortion threat”, he was not prepared to permit “litigation against someone who cannot be identified other than a description of his/her role, and with no indication of the state in which s/he is domiciled”.
Also notable was the judge’s approach to the part of the application which sought a declaration that the personal data on the website was inaccurate. The claimant was not “entitled” to such a declaration, and, in fact (Cleary v Marston Holdings and Aven v Orbis applied) declarations are not provided for under the data protection legislation and not generally granted in such litigation. The judge had “real difficulty in imagining the circumstances in which the Court would grant a declaration of “inaccuracy” in a data protection claim following a default judgment”.
The application was refused on all grounds.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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