Guest post by Philip Young, partner, and Rosie Wild, senior associate, at City law firm Cooke Young & Keidan
Whilst historically the ‘Persons Unknown’ jurisdiction was used to obtain injunctions, it is not so confined. There is no principled reason why it cannot also result in a monetary judgment against Persons Unknown, as in fact happened in the CMOC litigation. In that litigation, following a trial, monetary judgments were obtained against both identified defendants and Persons Unknown.
One of the many advantages of the jurisdiction is that it enables an injured claimant to pursue claims against joint tortfeasors and conspirators where the identity of some or all of them is unknown at the outset.
It can result in an ambulatory judgment that the enterprising claimant can then seek to enforce against further participants in the wrongdoing, as they are discovered, even after trial.
By definition, if a trial proceeds against Persons Unknown and a monetary judgment is obtained against them, the trial will likely have proceeded in their absence.
The prudent claimant will have been careful to have taken repeated, documented, steps to notify Persons Unknown of the litigation, to have served all relevant documents on them as the case progressed, and to have ensured they can prove proper service and notice to the trial judge of all such documents and of the fact of the trial itself.
At the trial, in compliance with the duty outlined in Braspetro Oil Services v. FPSO Construction Inc  EWHC 1359 (Comm), the claimant will draw “points, factual or legal, that might be to the benefit of [the defendant]” to the attention of the court.
Assume, then, that the court makes a monetary judgment. What then? The prudent claimant will seek to invoke the powers of the English and foreign courts to identify so-far unidentified individuals and entities who fall within the class and, when they are identified, to seek to enforce the judgment against their assets. At this point, newly identified defendants are likely to resist enforcement.
Applicability: does the person identified fall within the defined class?
The first argument a claimant may face is that the person(s) identified do not fall within the class described on the claim form and, as relevant, in the judgment. This is where the class definition and the factual information that the claimant has obtained will be crucial.
For example, the class definition might be structured by reference to information such as: (i) when the incident(s) complained of took place – i.e. a specific date or range of dates; (ii) what the incident(s) were; (iii) the amounts of funds that may have been misappropriated; and (iv) if money has landed in bank accounts of wrongdoers involved in money-laundering operations, by reference to the (unknown) joint legal or beneficial holders of the bank accounts involved.
Counter-attack: attempts to set aside the judgment against Person(s) Unknown
The person identified may also seek to set aside the judgment. How they seek to do this procedurally will depend on whether the judgment was obtained at trial, or upon a summary judgment application.
Where there has been a trial in the absence of the defendant, the defendant may make an application under CPR 39.3(3) for the judgment or order to be set aside, which must be supported by evidence.
Pursuant to CPR 39.3(5), the court will only grant this application if the applicant can show they have acted promptly, had good reason for not attending and had reasonable prospects of success.
The defendant may argue that the reason for non-attendance is that they never had notice of the claim form, the proceedings in general and/or the trial date.
As noted above, the prudent claimant will have taken care to show the court that the people within the Person(s) Unknown category were validly served, by traditional methods or by alternative service under CPR 6.15.
A defendant in this situation could attempt to attack the evidence on which any alternative service orders were made to show that the alternative location/address/phone number/Facebook account was not in fact associated with him/her or had not been checked since the date of the order.
Procedural points aside, the defendant may not confine itself to attacking the claimant’s case as to the defendant’s involvement in the wrongdoing. The defendant may make wider and more substantive attacks on the claimant’s case in general.
For example, say a judgment based on unlawful means conspiracy is obtained against Mr X and Persons Unknown. Subsequently, a newly identified defendant previously falling within Persons Unknown might seek to challenge the basis on which the judgment was obtained by, for example, attacking the findings of combination, intention to cause injury, what unlawful means were used and the claimant’s case on causation and loss.
To limit this risk, define the Person(s) Unknown class as narrowly as possible, ensure the most robust case is prepared and that it is presented fairly to the court in accordance with the Braspetro duty.
If the claimant obtained summary judgment, the defendant may apply for the judgment to be set aside or varied under paragraph 8.1 of CPR PD 24, and the court may make such order as it thinks is just.
In terms of the factors the court will consider, the general view is that the factors in CPR 39.3(5) apply by analogy but they are not considered rigid requirements.
Person(s) Unknown outside of the jurisdiction
There will be issues where the territorial reach of the definition of Person(s) Unknown extends outside of the jurisdiction of the English court and the claimant takes steps to enforce overseas.
The main issue will be trying to persuade foreign jurisdictions to recognise and/or enforce a monetary award against Person(s) Unknown where their jurisprudence may not recognise the concept. It may therefore fall foul of local law on the recognition and enforcement of judgments.
It is important to seek local law advice on these issues at an early stage, prior to trial. If the concept is not recognised in a certain country, it might be preferable to seek a later trial date and spend further time identifying the names of those within the class and then apply to name them as a defendant in the English proceedings prior to trial.
In summary, the right to obtain monetary judgments against Persons Unknown is a valuable remedy. It will be interesting to see how in future litigation they are tested and the law refined.