THE NEED FOR THE UTMOST CARE WHEN SEEKING INJUNCTIONS WITH SPEED: AN ENQUIRY AS TO DAMAGES ORDERED BECAUSE OF ERRORS MADE IN THE INFORMATION GIVEN TO THE JUDGE

The judgment of HHJ Halliwell, sitting as a High Court Judge, in  Bootle v GHL Property Management and Development Ltd & Anor [2025] EWHC 317 (Ch) provides an object lesson on the dangers of over-hasty applications for an injunction.   It is an unusual case in that a transcript of the original hearing was obtained and the submissions made were considered in detail.

“… applicants must show the utmost good faith and disclose their case fully and fairly, Siprorex Trade SA v Comdel Commodities [1986] 2 Lloyds Rep 428 at 437 (Bingham J). This remains the case if they provide notice to the respondents but such notice is shorter than the Rules provide unless the respondent or his lawyers is manifestly able to deal with all factual and legal issues at the hearing, CEF Holdings v Mundey (supra), at [182].”

THE CASE

The claimant brought an action against the defendants in relation to their trespass onto his land in the course of a building development.  Earlier on in the action the claimant had obtained an injunction restraining the defendant from carrying out work.  The injunction was obtained without giving full notice to the defendants. Rather they were given four hours notice. The defendants attended by leading counsel, however there was only a limited amount of input that he could give.  At the return date for the injunction, after the defendants filed evidence, it was conceded that the first injunction covered too wide an area of land and the terms of the order were altered.  The claimants succeeded at trial in establishing where the boundary law and obtained a declaration, an injunction and an order for damages to be assessed.

THE DEFENDANTS’ APPLICATION FOR AN INQUIRY AS TO DAMAGES ON THE CLAIMANT’S UNDERTAKING

The defendants sought an order for an inquiry as to damages on the basis of the undertakings given when the claimant obtained an injunction.  It was said that at the initial injunction application the court had been (inadvertently) misled. The claimant’s counsel had said that the defendants had refused to share their development plans with the claimant.  However the claimant had never asked for these documents.  The documents that the claimant had requested had been disclosed by the defendants.

THE JUDGMENT ON THIS ISSUE

The judge held that the defendants’ arguments were correct.  There had been no attempt to deliberately mislead the court by the claimant’s legal team. However the court was misled.   The order may not have been made in the same terms, or the application may have been adjourned to be heard inter partes.  Consequently the defendants were entitled to an inquiry as to damages they suffered.

1. 1. “The hearing before HHJ Cadwallader on 22 August 2024 was conducted remotely. Mr Bootle was represented by leading and junior counsel, Ms Caroline Shea KC and Mr Wilson Horne. Whilst Mr Bootle’s solicitors gave the Defendants’ solicitors advance notice of the hearing, this could have been no more than four hours in length. During this period, they were able to instruct Mr Rainey to attend on their clients’ behalf. However, in the short amount of time available, Mr Rainey had only a limited opportunity to acquaint himself with the issues and factual background and was unable to participate, in a substantial way, at the hearing.

1. 1. At the end of the hearing, HHJ Cadwallader fixed a return date and granted an interim injunction prohibiting the Defendants from entering Mr Bootle’s property, defined so as to include a strip of land to the South of the Ditch. The return date was listed for hearing before me. On 9 September 2024, I made an order again prohibiting the Defendants from entering Mr Bootle’s property but the boundary was re-defined. This order prohibited the Defendants from entering land to the north of the boundary shown on the registered title plan. The prohibition was thus limited to land north of the Ditch and well north of the prohibition in the 22 August Order.

1. 1. The Defendants’ Cross Application was issued on 23 September 2024. It is based on a series of scheduled allegations. However, in his submissions at trial, Mr Rainey narrowly focussed the Cross Application on one allegation only, namely leading counsel’s submission that the Defendants had refused, prior to the hearing, to provide Mr Bootle with information about their development plans. He submits that this was critical because it was deployed to persuade the judge that the hearing should proceed without sufficient notice. He also submits that the submission was incorrect since the Defendants did provide Mr Bootle with such information as was requested. He says that, prior to the hearing on 22 August 2024, the Defendants were not asked to provide information about their development plans. In the absence of a request for such information, it could hardly be suggested they refused to provide it.

1. 1. In my judgment, this part of the Cross Application is essentially correct.

1. 1. The Rules provide for applications to be made by written notice. Under CPR 23.7(1), service must generally be effected as soon as practicable and at least three days before the hearing. Service may be dispensed with in cases of exceptional urgency or where the overriding objective is best furthered by doing so, PD23A Para 3. However, injunctive relief on a without notice application is itself an exceptional remedy, Moat Housing Group-South Ltd v Harris [2006] QB 606. When disposing of an appeal, from Jamaica, on an application for injunctive relief, the Privy Council has thus observed that without notice applications should not be entertained unless notice would enable the defendant to defeat the purpose of the injunction or there is literally no time for notice, National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16. Mindful of this observation, Silber J concluded, in CEF Holdings v Mundey [2012] EWHC 1524, at [255], that it is prudent in such cases for the applicant to provide the court, at the outset, with a full and honest explanation as to why proper notice could not be given.

1. 1. In any event, applicants must show the utmost good faith and disclose their case fully and fairly, Siprorex Trade SA v Comdel Commodities [1986] 2 Lloyds Rep 428 at 437 (Bingham J). This remains the case if they provide notice to the respondents but such notice is shorter than the Rules provide unless the respondent or his lawyers is manifestly able to deal with all factual and legal issues at the hearing, CEF Holdings v Mundey (supra), at [182].

1. 1. In the present case, the Defendants were only given short notice of the hearing because it was perceived the need for relief was too urgent to await three days’ notice bearing in mind that the following weekend and Bank Holiday would be excluded. It is not suggested that they would have been in a position to pre-empt the relief or defeat the purpose of the injunction. It was Mr Bootle’s case that, in the absence of immediate relief, irreversible damage would be caused and there was thus no time for the Defendants to be provided with sufficient notice under the Rules.

1. 1. However, by the time of the hearing, the Defendants’ works on the boundary had been in progress for some time. The parties’ solicitors had entered into correspondence about the works in late July 2024. In the absence of something unusual about the development scheme itself, it was inherently unlikely that giving the Defendants full notice under the Rules would have afforded them the opportunity to hasten their scheme of work so as to cause substantial and irreversible damage.

1. 1. A transcript of the hearing has been obtained from which it can be seen that HHJ Cadwallader was alive to the need for Mr Bootle to show real urgency. This includes the following exchange.

HHJ Cadwallader: “…what is it about the urgency that means that the usual notice could not be given? Because, you know, there is a difference between needing to crack on – having decided that things have got to that point – and needing to crack on without the usual amount of notice, is this a matter where a day, two days, three days are going to make a difference?”

Leading Counsel: “Well, it might well do. We don’t know. And the Defendants have refused to share what their development plans are. We did not think that such serious works would be done in the interim between our correspondence/between our drone surveys but they continue to be done. And if it were a matter of another three days- and, as your Lordship will appreciate, on an injunction of this kind it has taken us all our might at our end to get the papers ready for this injunction – another three days, we do not know what extensive works could be done in those three days”.

HHJ Cadwallader: “OK, so it is precautionary, I understand”.

Leading Counsel: “It is precautionary but with justified grounds for our fears”.

1. 1. As leading counsel for the Defendants, Mr Rainey was later given the opportunity to respond. Having emphasised that he had not been provided with bundles of evidence and was in no position to participate properly at the hearing, he took issue with the proposition that the application required urgent disposal without notice, asking rhetorically at one point “what is going to happen in the next three days?” However he did not take issue with the allegation that his clients had refused to share their development plans, no doubt because he had not had the opportunity to take full instructions on the information his clients had provided prior to the application.

147. In his judgment, HHJ Cadwallader did not mention the Defendants’ putative refusal to share their development plans. However, when considering whether damages were an adequate remedy, he stated that he was “concerned…given that this application is made without notice if it had been made with notice it would have been heard no more than about three days later than today, during which there is a question in my mind as to how much additional work would realistically have been done”. The Judge confirmed that he had “hesitated over this”. However, he then stated that “there is every sign – reading between the lines of such correspondence as I have seen – that this is a case in which the Defendants are taking a strong and firm stance and are proceeding at pace with development in the area which is subject to this dispute”. He also noted, from photographs of the development that substantial works were being carried out. On this basis, he was implicitly persuaded to entertain the application. Having done so, he granted Mr Bootle interim injunctive relief.

148. Whilst the Judge did not mention, when giving judgment, the Defendant’s putative refusal to share their development plans with Mr Bootle or his legal advisers, it is apparent from his judgment that he hesitated on whether to grant relief without sufficient notice. This is an issue to which he returned at the very end of his judgment when he stated that “I have been very concerned…at the making of the application effectively without notice”. He concluded by saying “but it seems to me that, for present purposes, I am satisfied enough to grant an injunction over until the return day”. Whilst the question did not yield an unequivocal answer, he thus decided, on balance, that he should entertain the application and grant interim relief. Although the Defendants’ case cannot be put any higher than this, it is conceivable that leading counsel’s submission about the refusal of the Defendants to share their development plans had a bearing on the judge’s final conclusion.

1. 1. This is significant since, prior to the hearing, the Defendants were not asked to provide Mr Bootle with information about their development plans. This can be seen from the witness statements of Joanne Elise Mills, the Defendants’ solicitor. Following the hearing, Ms Mills confirmed, in her witness statement dated 28 August 2024, that “no development plans, timescales or programme of works has ever been requested by [Mr Bootle] and [whilst] site surveys in respect of the boundary have been requested [these have been] provided in full”. When Ms Mills asked Mr Bootle’s solicitor for evidence of any material request, he referred her to an earlier request for due diligence documents including surveys to the boundaries”. This request was contained in a letter dated 26 July 2024 to the Defendants’ previous solicitors and amounted to a request for due diligence and survey documentation rather than the Defendants’ plans for development. Once the request had been relayed to Ms Mills, she had provided Mr Bootle’s solicitors with a copy of three survey documents, namely a Utilities Survey dated August 2022, an existing site plan dated November 2022 and North Boundary Set Out Plan dated May 2024. Ms Mills had not been requested to provide development plans or information about such plans. Whilst she had been asked to provide the due diligence and survey documentation, she had not refused to provide Mr Bootle or his solicitors with such documentation. There is no evidence that, when providing them with such documentation, Ms Mills omitted to provide them with all the information requested but, if this is the case, such an omission would not, in itself, amount to a refusal.

1. 1. In my judgment, there can be no question in the present case of a deliberate intention, on the part of counsel or their solicitors, to mislead the court. If the court was misled, this was inadvertent. It is not suggested otherwise by the Defendants. However, this is no excuse for the unfair presentation of a party’s case, see for example Brink’s Mat v Elcombe [1988] 1 WLR 1350.

1. 1. Putting Mr Bootle’s case before HHJ Cadwallader at its highest, he did not know the Defendants’ development plans and the Defendants had not provided him with details of such plans. In these circumstances, he was anxious to obtain relief at the earliest opportunity. No doubt, this is the impression counsel sought to convey. Moreover, it is consistent with the judge’s stated observation that relief was being sought on a “precautionary” basis. However, his counsel allowed the impression to be created that the Defendants had refused to provide Mr Bootle and his legal representatives with information about their development plans and the time-scale in which the constituent works were to be carried out. It matters not whether this was primarily down to an error on the part of counsel, their solicitors or client.

1. 1. It is unusual for counsel’s submissions to be subject, retrospectively, to careful and minute analysis in this way. Unfortunately, however, this is the territory of a hearing for injunctive relief on an application without sufficient notice. In the present case, leading counsel’s submission that the Defendants had refused to share their development plans was incorrect. The submission was made without qualification or explanation and it was made in answer to a question which was troubling the judge. Viewed objectively, the submission was material in the sense that it was potentially capable of having a bearing on the outcome of the application. In my judgment, this is enough to satisfy the test of materiality. As it happens, it is not possible to conclude that the relevant submission swung the Judge’s decision or even that it is likely to have done so. For the sake of completeness, however, it is at least conceivable that it influenced the Judge when he arrived at this conclusion.

1. 1. Having determined that counsel’s submission was misleading and involved a material breach of the duty of fair presentation, the next question is whether I should exercise my discretion to set aside the 22 August Order. The breach was inadvertent and, whilst it may have affected the outcome of the hearing, there is nothing on the face of HHJ Cadwallader’s judgment to suggest it did so. In my judgment, however, these considerations are outweighed by the policy reasons for enforcement and the prejudice occasioned to the Defendants. At the hearing on 22 August 2024, HHJ Cadwallader was persuaded to make an order prohibiting the Defendants from crossing a boundary measured upwards of four feet to the south of the Ditch. This prohibited them from carrying out work in or on the Ditch itself and an extensive area south of the Ditch, including an important part of the enabling works for their development project. This injunction continued in effect until 9 September 2024 when I made an order aligning the prohibition with the boundary shown on the registered title plan north of the Ditch.

1. 1. The boundary in the 22 August Order was based on Mr Hainsworth’s expert report dated 21 August 2024. Following the hearing on 22 August 2024, the Defendants filed evidence to challenge his conclusions, including a copy of the 1849 OS Map. Once this evidence was referred to Mr Hainsworth, he recanted his earlier view and presented a further report with the boundary four feet south of the hedge on the northern side of the Ditch. My order dated 9 September 2024 was based, in part, on the evidence admitted after the hearing on 22 August. Had Mr Bootle elected to proceed, at the outset, on a full notice basis, the Defendants would have been provided the opportunity to file their evidence earlier. It can reasonably be inferred he would then have obtained an injunction on essentially the same terms as my order dated 9 September 2024. However, on this basis, the prohibition would have been to the north of the Ditch. It would thus have enabled the Defendants to continue with their scheme of enabling works on the Development Land.

1. 1. I shall thus make an order setting aside the injunction in the 22 August 2024 Order.

(15) Inquiry as to damages

1. 1. The 22 August Order was made subject to Mr Bootle’s cross undertaking in damages. This provided, in the usual way, for the Defendants to be compensated for losses sustained owing to the order. In view of the fact that the 22 August Order prohibited the Defendants from entering land within GHL’s ownership, well to the south of the Established Boundary, and they were thus prohibited from carrying out works on such land between 22 August and 9 September 2024, the Defendants have prima facie sustained loss and damage for which they are entitled to be compensated.

1. There shall be thus be an inquiry as to damages.”