Zombie cases: why suing the unknown can make sense

Those of you who do not read the popular press or have been stuck on a desert island for the past few years will not know Pippa Middleton. Ms Middleton is the younger sister of Catherine ( Kate) Middleton, now Duchess of Cambridge and wife to the future heir to the throne of the UK, Canada, Australia and New Zealand and Head of the Commonwealth. I digress.

In 2016 Pippa Middleton’s phone was hacked and The Sun newspaper was good enough to report the fact that it had been approached by the hacker who claimed to have obtained over 3000 images from Ms Middleton’s account for which he was asking for the tidy sum of £50,000.  An alleged hacker has been arrested but the criminal justice system has taken its usual approach to such matters which means that evidence must be obtained and reviewed in the context of the Code for Crown Prosecutor’s before a decision is made upon whether to charge the relevant person or persons for the theft of the data. The application of the evidential and public interest tests, obviously, takes time.

Ms Middleton sensibly sought advice. She did not want to wait for the criminal justice process to take its rather ponderous course. She wanted to act swiftly to prevent her private photographs from entering the public domain for clearly she could have sought payment for them herself if that was her wish.

I am not privy to the advice she received but I imagine she will have been asked if she knew who the hacker was or who it was she suspected of this. Ms Middleton may well have had some idea but equally she may not have had a clue. As we have all learnt over the course of the last decade or so, lonely individuals often sitting in the single bedroom of their parent’s home, can access data which they have no right to access. Indeed, the Pentagon is so aware of the skills of such people that it now runs an annual “Hack the Pentagon” competition. This is described as a program designed to identify and resolve security vulnerabilities within Defense Department websites through Crowdsourcing. The winner of the competition is awarded a coin as well as a bounty of up to $150,000. The Pentagon has never revealed how many entrants are registered to Russian or North Korean domains.

Let us speculate that Ms Middleton did not know who the person was that had hacked her icloud account. What would her anxious lawyers have made of that? The answer; let’s sue (bring suit against) the unknown. British courtrooms, even in cases where it might be thought that conflict might best be avoided, are renowned for their combativeness. Opposing sides going at each other only moderated by the solemn interventions of the judge.   Having no opponent just sounds a bit unfair really. Bowling a ball to an empty wicket really isn’t cricket.

But bowl a ball at an empty wicket is exactly the route Ms Middleton’s lawyers advised her to adopt. So an after- hours call was made to Mr Justice Dove seeking an urgent interim injunction preventing a person or persons unknown from infringing Ms Middleton’s rights by variously:

  • Not using, publishing, offering for sale or otherwise disclosing (save by way of disclosure to their as yet probably unidentified and non-existent legal team in relation to these proceedings) photographs or other information derived from, or which there are grounds to suspect derive from, the icloud account of Ms Middleton.

Mr Justice Dove granted the injunction. As is the procedure for the grant of an urgent interim injunction a return date is fixed for a further hearing on the injunction which deals specifically with whether that interim injunction should be continued. The process will therefore ordinarily require the Defendant to be notified of this return date so that their lawyers can begin the task of dismantling the arguments which led to the grant of the interim injunction in the first place. No need you might think for Ms Middleton’s lawyers to undertake the task of bringing this particular injunction to the attention of anybody since a “person or person unknown” is exactly that. However, and very sensibly,  Ms Middleton’s lawyers did let the man who had by then been arrested on suspicion of hacking into Ms Middleton’s account know of the return date.

Mrs Justice Whipple was the judge on the return date for the injunction. She noted that it was not clear who was responsible for the hack of Ms Middleton’s icloud account though she did remind herself that the police had arrested a man on suspicion of having done so and that this person was actually in court and indeed represented in the proceedings by a Mr Egan. So, the person unknown may actually have been present and represented or might well be somebody else entirely. Time may tell.

Mrs Justice Whipple directed herself that such applications are guided by section 12 of the Human Rights Act 1998 and that by virtue of section 12(2) no application for relief should be granted where the respondent is neither present or represented unless the court is satisfied that either:

  • The applicant had taken all reasonable steps to notify the respondent.
  • There are compelling reasons why the respondent should not be notified.

She observed that Mr Egan’s client was present and represented and thus that Ms Middleton’s lawyers had taken all reasonable steps to notify him of the proceedings. Quite sensibly the judge did not consider the thorny and difficult philosophical issue of whether Mr Egan’s client was and remained a person unknown or achieved some other higher status having been served with the proceedings. The Judge went on to find that there were “compelling reasons why no one else has been notified of today’s hearing or of this application: the identity of the defendants (respondents to this application) is currently unknown. The Judge went on to consider the case of Bloomsbury Publishing Group PLC v News Group Newspapers Ltd otherwise known as the Harry Potter books theft case. Here the publishers of the Harry Potter books sought an injunction preventing the sale of the fifth book in the series by persons unknown who had surreptitiously and dishonestly removed at least 3 copies of the book from the printers. Mrs Justice Whipple found that the current case was a proper one for the defendants to be identified only as a person or person unknown. The statutory and common law conditions therefore being satisfied, Mrs Justice Whipple continued the injunction.

The course adopted by Mrs Middleton’s lawyers was not the only one available to her. A private prosecution against the hacker might also be considered in due course should the CPS decide, as they might, that there was insufficient evidence to bring proceedings against any particular individual.

For more see Practice note Private Prosecutions.

Ms Middleton’s case is useful to those who are not particularly concerned about having their icloud account hacked (or do not possess the means to issue proceedings in the High Court to prevent disclosure of these details to the mass media should anybody be interested in a purchasing such information) but should be of note to those with valuable data or copyright to protect who believe themselves to be the victims of theft. Such an injunction sends a clear message out to the world not to deal in the stolen commodity.


Practical Law Paul Brooks

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