The claimant owner of a cosmetic surgery company brought an application for an interim injunction prohibiting the defendant, an independent cosmetic surgery patient advocate, from posting anything on social media which he considered “defamatory” of his company or staff. The application was brought under CPR Pt 23 on form N16A, the general form of application for an injunction and specified that the application was brought under the Protection from Harassment Act 1997. The claimant failed to indicate as required on the N16A form, inter alia, that the application was made “in pending proceedings” and that it was made under CPR Pt 8. The defendant opposed the application and contended that she would suffer financial income loss if the injunction were granted. Following a short contested hearing, the interim injunction was granted. Contrary to the requirements of CPR PD25A, which at the material time governed such interim applications, no undertaking was sought from or given by the claimant to issue a claim form, no directions for the issue of the claim form were given, no cross-undertaking was offered by the claimant or recorded as to damages and no claim form was served with the injunction order. In the event, no claim form was ever issued. The defendant subsequently applied to discharge the injunction, and sought orders for damages and costs. The claimant accepted that the application for the injunction was deeply misconceived, should never have been made and that the order should never have been granted, and consented to an order for its immediate discharge. However he contended that the court had no power to make an order for damages and costs as there were no “proceedings” before the court in which such an order could be made; and that since no Part 7 or Part 8 claim was ever issued, the injunction proceedings were essentially a nullity. The deputy district judge and the circuit judge on appeal rejected that argument, concluding that there were proceedings before the court, and that the court had jurisdiction to make orders which would be effective to allow the defendant to seek her costs and damages when the injunction was discharged.
On the claimant’s further appeal—
Held, appeal dismissed. An application for an injunction issued under CPR Pt 23 and CPR Pt 25 (or previously CPR PD25A) prior to the issue of a Part 7 or Part 8 claim, constituted “proceedings”, in respect of which key provisions of the CPR applied. The term “proceedings” was not defined in the CPR and was used inconsistently within the CPR to refer to the period after a claim was issued, but also to the period in which the court was exercising a jurisdiction in the strict sense before a claim was issued. It was clear that the CPR applied generally to “all proceedings” in the County Court. Therefore, despite the incorrect form being used and the application being misconceived, the issue by the County Court of the N16A form constituted the commencement of proceedings and the court therefore retained an active jurisdiction with the power to make a range of orders in respect of, and ancillary to, the application before it, including its discharge, and costs. Further, in granting the application the court was exercising the equitable jurisdiction confirmed by section 38 of the County Courts Act 1984, providing the court with power to make orders in any proceedings in the County Court which could be made by the High Court if the proceedings were in the High Court. That contemplated a wider range of proceedings than merely Part 7 or Part 8 claims. The power to award costs or to make other orders in relation to interim applications for injunctions was not therefore contingent on the prior or subsequent issue of a claim form. Civil courts routinely made costs orders when they heard urgent interim injunction applications, whether or not a claim form had been issued or would be issued in due course. The overriding objective to ensure that cases were dealt with justly and at proportionate cost, including by ensuring that the parties were on an equal footing and could participate fully in proceedings, applied just as firmly to “proceedings” at a pre-action injunction stage as it did to any other stage of the “proceedings”. The defendant had therefore been entitled to pursue a claim for her costs of defending the injunction, and damages and it would be unconscionable for the claimant to be able to profit from his actions in issuing a misconceived application without facing the financial and other consequences of doing so. Further, or in the alternative, it was unconscionable to allow the claimant to benefit from his own failures and the error of procedure in filing the wrong form could be corrected under the CPR rules with the effect that the form N16A stood as a claim form in the proceedings (paras 9–11, 64–68, 71, 73, 75–76, 78–80, 85, 88–91, 92, 93).
David Hirst (instructed by Jaroslaw Stachiw) for the claimant,
Aidan Eardley KC and David Mitchell (instructed by RPC) for the defendant.