Names, notice and the demands of due process

Our apex court has recently given renewed support for a general rule that requires the claimant to name her defendant at the outset of a civil action; exceptionally, she may prove that the defendant will discover the proceedings in the process of enforcing an ensuing court order. The purpose of this article is to consider the justification for a general identification threshold, and to develop a corresponding blueprint for this part of our procedural framework. I argue that the role of procedural identification is two-fold: first, it serves the distributive goal of ensuring that judicial resources are not directed towards fruitless actions; second, it serves the corrective goal of ensuring that the defendant can participate in the decision-making process through which her adversary seeks redress, which is a crucial aspect of the law’s commitment to procedural fairness. I argue that we should distinguish two kinds of case, which correspond to these goals: if the efficacy of the order sought depends upon provision of the defendant’s name, the claimant should be required to provide a name; if it does not, the claimant should be required to prove – whether or not she can name her defendant – that she can give notice.