Legal Opinion: The law according to John and Jane Doe

John Doe has made an appearance in almost every courtroom in the US. Now the American litigant has crossed the Atlantic, says Robert Verkaik, Law Editor
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The Independent Online

John Doe must be the most feared litigant in America, responsible for single-handedly suing hundreds of thousands of people across 50 states.

His latest victim is the British actor Sacha Baron Cohen whose film and production companies, 20th Century-Fox and One America Productions, are being sued for fraud, breach of contract, invasion of privacy and emotional distress.

It is double litigation trouble for Mr Baron Cohen, the actor behind the fictional TV Kazakh reporter Borat, as he is facing legal action from not one, but two John Does. Both lawsuits claim that he plied John Doe 1 and John Doe 2 with booze and tricked them into making fools of themselves in his new movie. Over the years, presidents, film stars and many more ordinary citizens have all had to defend writs from John and his litigant in marriage, Jane Doe.

But the Does are not a vexatious couple hell-bent on bringing litigation chaos to the United States. The name is merely a legal device which provides a claimant with anonymity when bringing a sensitive case to court. The "John Does" in the Sacha BaronCohencasearetwostudents who were featured in his film but don't wish to be identified.

Although the John Doe lawsuit is widely used in America it actually has its origins in England, where it dates back to the reign of King Edward III and something called the Acts of Ejectment. During a legal debate about this law a hypothetical landowner, referred to as "John Doe", leased land to another man, the equally fictitious "Richard Roe", who then took the land as his own and "ejected", or evicted, poor "John Doe". And so this legal procedure was born.

In England and Wales the so called "John Doe" action is used in breach of confidence or privacy cases where the claimant, usually a celebrity, wants to stop damaging material being published but does not know the identity of the person who is in possession of the information.

Last month the High Court considered the "John Doe" case of a famous, but unnamed, model and her husband who had obtained an injunction against a number of national newspapers who they believed had acquired confidential information about their troubled marriage.

In this particularly unusual case the unnamed model could not identify the person who she believed was responsible for the confidential disclosure and so attempted to injunct the media on a John Doe basis.

Associated Newspapers Ltd, represented by Reynolds Porter Chamberlain and Andrew Caldecott QC of One Brick Court, applied to have the injunction varied and invited the court to give guidance on the procedure in such cases. Mr Justice Eady upheld the injunction but ruled that, generally, it will not be appropriate to prohibit publication of the mere fact that a couple have separated as this would be obvious to many other people who know them. The court also made it clear that every reasonable effort must be made to try to find the person who was hawking the story around Fleet Street.

The judge also said that the claimant had a duty to disclose information which is reasonably likely to assist the respondent's probable defence at trial. This does not mean the claimant has to dredge up everything that has been published about them but they will be required to search the internet and previous publications relating to the same category of information they now seek to protect.