Strand, London, WC2A 2LL
B e f o r e :
| BLOOMSBURY PUBLISHING GROUP LIMITED
J. K. ROWLING
|- and -
|NEWS GROUP NEWSPAPERS LTD
PERSON OR PERSONS UNKNOWN
E. J. BARNES
Mr. Bruce Carr (instructed by The Treasury Solicitor) as Advocate to the Court
Hearing date : Wednesday, 21st May 2003
Crown Copyright ©
The Vice-Chancellor :
"the person or persons who have offered the publishers of the Sun, the Daily Mail, and the Daily Mirror newspapers a copy of the book 'Harry Potter and the order of the Phoenix' by JKRowling or any part thereof and the person or persons who has or have physical possession of a copy of the said book or any part thereof without the consent of the claimants."
"A writ cannot be issued in the terms proposed referring to the parties sought to be summoned in this vague way. I think that that is clear from the rules and the official forms. Tracing the matter a little further back the original official form of writ in use was established by the Act of 2 Will. 4, c.39. That act recited that "whereas the process for the commencement of personal actions is by reason of its great variety and multiplicity very inconvenient in practice," and proceeded to enact that the process in all such actions should be according to the form contained in the Schedule to the Act annexed marked No. 1, and which process should be called a writ of summons. In the form of the writ in the Schedule the writ is directed to C. D. of, etc., in the County of .
That form was followed in the Judicature Act, 1873, and it is to be found now in the forms directed to be used in Order 11., r. 3, which directs that "the writ of summons for the commencement of an action shall, except in the cases in which any different form is hereinafter provided, be in one of the Forms Nos. 1, 2, 3, and 4 in Appendix A Part 1, with such variations as circumstances may require," and the appendix shows that the writ must be directed to a particular defendant of a specified address. In my opinion, this writ does not comply with the form of writ which has the basis of statutory authority."
"It appears to me that the procedure established by the Judicature Act necessarily implies even if it does not expressly state and I think it does so state that it is necessary to an action that the defendants should be named. In some cases they may be described by the office which they hold, but apart from that, they must be named; and it seems to me to be contrary to the rules to issue a writ against defendants who you do not know by describing them merely as owners of certain property. It is not right to describe the defendants in the vague way adopted in this writ."
"This is a writ in personam, and in my opinion, the writ, in not naming the defendants, but merely describing them as the owners of adjoining property, is bad. The plaintiffs do not know, and the writ does not state, whether any one of the defendants is a lunatic, or an infant, or is residing abroad, or is under any kind of disability, in each of which cases some special directions or some special procedure might be required.
There is no authority or precedent for such a writ, and counsel was unable to tell us of any case where a writ of this sort has been allowed."
Thus the objections were twofold. First, the prescribed form required names and addresses. Second the description was too vague.
"It is axiomatic that a person claiming an order of this court against another, except where a statute provides otherwise and I shall have to consider whether the order and rules made under statute do provide otherwise cannot obtain that relief except in proceedings to which that other person is a party and after that other person the person against whom the relief is sought has had the opportunity of appearing before this court and putting forward his answer to the claim. The accusatorial process by which the person against whom relief is sought is summoned to appear to answer the plaintiff's claim is the process by which justice has been done in England and Wales between man and man over the centuries."
"The second objection, and it is in my judgment a fatal objection, to the procedure which the applicants invoke is that an order made upon an ex parte application in ex parte proceedings will bind nobody. It is a truism that an order or judgment of this court binds only those who are parties to or attending the proceedings in which the order or judgment is given or made. This principle is blurred where the action is an action for the recovery of land by reason of the process by which the judgment is executed. The sheriff acting pursuant to a writ of possession will be bound to turn out those he finds upon the land whether they are bound by the judgment or not. But judgment and the execution of the judgment are two different things, and much of the argument which has been addressed to me in this case, I think, ignores that distinction. It is no doubt correct that if I were to grant the relief which the applicants seek upon this present application and order that the persons in occupation do deliver possession of the premises and that the applicants be at liberty forthwith to issue a writ of possession the trespassers would be turned out and in that sense the order would be binding upon them. But as a matter of law an order that the plaintiffs do recover possession of the premises binds only the parties to the proceedings: which these trespassers are not.
Thus the objections in this case were different to those in Friern, namely, there was no defendant and the order, as sought, would have no effect.
"However, I have reached the conclusion that the Local Judge was wrong in holding that a substitution for, or addition of, a party was involved and erred in not holding that the application was merely to correct a misnomer of an existing party to the action. The words "John Doe" to my mind are not restricted in connotation to a "fictitious" person or one not in existence. Traditionally the words were used in that limited sense in early ejectment suits, but for generations they have come to be accepted, used and understood, both in legal and common parlance, as indicating a real person existing and identifiable but whose name is not known or available to the person referring to him. That is the situation here. The appellant was not purporting to sue a fiction to maintain or acquire some property right as was done in ancient times. On the contrary, she was suing a living man whom she alleged was at a particular defined time and place operating a described motor vehicle in such a negligent manner as to cause her injuries then and there. Her litigating finger was pointed at that driver and no one else, but she did not know his name. For the purposes of suit (and it was necessary to act quickly because of the imminent expiry of the limitation period) she gave that identifiable and identified man a name, using one that would clearly connotate to all that it did not purport to be his real name. And, further, in the endorsement it was clearly stated that the real name of the defendant driver was not "John Doe" but was unknown except to the other defendant, the female respondent.
Under these circumstances, I can see no elements of an addition of, or substitution for, a defendant. No new entity or person was involved. It was merely an application to change the name of a party from a patently incorrect one to his proper one."
Thus the description 'John Doe' sufficiently identified the driver of the vehicle at the relevant time and place even though it was obviously not his name. The use of that description was both permitted and sufficiently certain. Such a description was also approved by the Court of Appeal in England in the case of Levy v Levy (unreported 9th November 1979), see per Donaldson LJ in Barnett v French  1 WLR 848, 853.
"The Court of Appeal of this province has endorsed the practice of the use of "John Doe" to describe a defendant who is a real person but whose name is not known. In the case of Jackson v Bubela,  5 W.W.R. 80, 20 D.L.R. (3d) 500 (B.C. C.A.), the Court of Appeal permitted the plaintiff to amend his writ of summons to substitute for the name "John Doe" the proper name of the driver of the motor vehicle. The discussion in that case indicates very clearly that in this jurisdiction a plaintiff is not to be frustrated in his claim by a procedural requirement that the defendant be named where the circumstances are such that the name is not known or ascertainable.
A well-established practice of the court ought not to be changed without a convincing reason. None has been shown to me and moreover, by implication, the practice has the approval of the Court of Appeal."
There is no indication in the reports of either Jackson or Golden Eagle that the decisions turned on provisions peculiar to the law of British Columbia.
"It is an ancient maxim of the law that where there is a right there is a remedy: Ubi jus ibi remedium. In circumstances where it is plain that persons are infringing proprietary interests which the law recognises, or deceiving the public by way of trade in a manner which may indirectly affect the commercial interests of others, the law should, if it reasonably can, provide a remedy.
What is proposed in this case is that certain solicitors named in the application who by virtue of their status are officers of this court, should be authorised to accost bootleggers at the concert venues and require them to provide their current addresses, evidence of identity, and to surrender up to the named solicitors all merchandise including T-shirts, head-bands, badges or programmes in their possession or control. Persons required to respond to these oral interrogatories, which conceptually is what they are, will be such persons as are served with the orders for injunction also sought in this proceedings.
The second and third defendants are identified as persons who sell unlicensed merchandise at the relevant concert venues. It is expedient to refer to them in this judgment as "John Doe" and "Jane Doe". The fact that persons cannot be identified at this stage of the proceeding is no bar to relief against persons who may be identified at a relevant time. It is not the name but the identity and identification of infringing persons which is relevant. The identify may not be immediately established but persons infringing will be identified by their act of infringement. Jane Doe and John Doe will be known by their works."
"These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly."
What that involves is amplified in Rule 1.1(2). Rule 1.2 requires the court to give effect to the over-riding objective when it exercises any power given by the Rules. Such powers include the general powers of management set out in Rule 3.1 which include the power (3.1(2)(m)) to
"take any other step or make any other order for the purpose of managing the case and furthering the overriding objective".
Rule 3.10 confers on the court a general power of dispensation where there has been a procedural error and provides that such error does not invalidate any step taken in the proceedings unless the court so orders.
a) am I entitled to make the order sought? and if so
b) should I do so?
The answer to the first question depends on whether and if so to what extent I am bound by the ratio decidendi of either Friern or Wykeham Terrace. I will consider them in turn.