On the basis of the SpyCatcher case, where a claimant obtains an injunction against a defendant to protect confidential information, third parties on whom the order is then served are also bound by the injunction. This system works well where there is an identifiable defendant in the first instance. A problem arises if a claimant is aware of a prospective breach of confidence, wishes to ensure that the media (and in particular the Fleet Street titles) are bound by a court order not to disseminate any other confidential information, but there is no identifiable defendant against whom to start an action.
This is the problem which faced JK Rowling and the Bloomsbury Publishing Group concerning the alleged theft of copies of the as yet unpublished final episode of the hugely successful Harry Potter series. It seems that at least three copies of the book had been taken without authority from the printers and offered to the Press. News Group (which was the first defendant) had delivered up any material in their possession and had offered undertakings concerning the confidential information at issue. However, the second defendant was described as ‘PERSON OR PERSONS UNKNOWN’, and the High Court had to decide the correct approach to dealing with such a problem. The Vice Chancellor handed down his judgment on 23 May.
Assisted by treasury counsel, the judge reviewed carefully the relevant authorities where such a problem had arisen in the past. Generally the authorities indicated that the English legal system did not accommodate such a device. However, the judge observed that ‘other common law countries took a different line.’ The use of ‘John Doe’ in proceedings where the correct defendant was not known (or ‘Jane Doe’ where the defendant was thought to be female) was approved by the courts of British Columbia. The courts of New Zealand appear to have taken a similar line.
After reviewing the authorities the judge concluded that he was faced with two questions:
- Was he entitled to make the order sought? And if so,
- Should he do so?
As to the first question the judge concluded that he was not bound by the two UK authorities which appeared to rule out such a course. As to the second question, he concluded:
‘I can see no injustice to anyone if I make an order in the form sought but considerable potential for injustice to the claimants if I do not. For these reasons I will make the order.’
This is a very good example of judicial initiative and pragmatism, drawing where appropriate from Commonwealth precedents to close an anachronistic lacuna in our own legal system. The Vice Chancellor has taken full advantage of the inherent flexibility of our legal system to find a remedy where one was plainly appropriate, even though the historic precedent apparently militated against it.