![CA-2024-002323 - [2025] EWCA Civ 1168](https://backend.juristeca.com/files/emisores/logo_Sjvxvlx.png){kind=logo}
Background facts
Background facts
At all material times, the Appellant (the claimant in the court below) was the founder and director of a national cosmetic surgery company called Signature Medical Limited (‘Signature’). The Respondent is an independent cosmetic surgery patient advocate.
In 2023, the Appellant took exception to adverse statements made about Signature on social media which he regarded as harassing and harmful to his reputation and the reputation of the company. The Appellant believed that the statements had been made by the Respondent.
On 18 April 2023, the solicitor acting for Signature sent a notice of intended litigation to the Respondent, indicating that it intended to bring a defamation claim against her under section 1 of the Defamation Act 2013, arising from “highly defamatory and derogative statements” on social media.
On 4 July 2023, the Worcester County Court issued the Appellant’s application for an interim injunction against the Respondent. The Appellant made his application on the standard templateform N16A. The claimant specified that the application was brought under the PfHA 1997. However, it is notable that the Appellant erroneously:
did not tick the box on the N16A which would indicate that the application was made “in pending proceedings” (which it was);
did not tick the box which would indicate that the application was made “under Part 8 of the Civil Procedure Rules”; the claim under section 3 of the PfHA 1997 (see Appendix §101 & §102) would ordinarily be brought under Part 8 – see CPR r.65.28 (see Appendix §117);
ticked the box which indicated that the application did not raise issues under the Human Rights Act 1998 (which it did, in relation to Article 10 ECHR: Freedom of Expression) (see Appendix §103).
By the application, the Appellant sought an order that the Respondent “remove Facebook Group and other online groups referred to in legal letter 18 April” (sic), and “desist from further defamatory or derogatory statements against the Claimant” whether by herself or by instructing or encouraging or permitting any other person, and that the Respondent should pay the Appellant’s costs. The fee for making a Part 8 claim at the time was £332; the Appellant paid that fee.
No request had been made for an urgent hearing, and the application was listed in the usual way one month later on 3 August 2023, before a district judge. At that hearing, the Appellant was represented by counsel (not counsel instructed on this appeal). The Respondent appeared in person. Prior to the hearing the Respondent had filed and served a witness statement, largely refuting the Appellant’s case; she denied that she had been responsible for all of the alleged social media activity, and in any event denied that her social media activity constituted harassment. The Respondent made clear in that statement that she would suffer financial (income) loss if the injunction were granted and she opposed the injunction application.
Following the contested hearing, an interim injunction was granted “forbidding” the Respondent from posting “or … encouraging others to post” or being:
“…involved in any social media groups actively posting comments or remarks considered to be defamatory against [Signature] or its staff present or past” (sic).
The order was expressed to continue “until the next hearing”, unless earlier “revoked by further order of the court”. There was little if any adherence to the provisions of CPR PD25A which at the time governed an interim application of this kind. Specifically, no undertaking was sought from, or given by, the Appellant to issue a claim form in compliance with CPR PD25A para 4.4 (1). The court gave no directions for the issue of the claim form (CPR PD25A para 4.4(1) and para 5.1(5)(b)). Moreover, no cross-undertaking was offered by the Appellant or recorded as to damages (“which the respondent sustains which the court considers the applicant should pay”), notwithstanding the Respondent’s evidence about her projected financial loss and the requirement under CPR PD25A para 5.1(1). A penal notice directed at the Respondent was clearly displayed on the face of the order.
No claim form was served with the injunction order in non-compliance with CPR PD25A para 4.4(2).
The directions given on 3 August 2023 appear to have been predicated upon the district judge’s mistaken belief that a Part 8 claim form had in fact been issued; this was possibly because the Appellant had not ticked the ‘pending proceedings’ box on the form (see §15(i) above). The judge stayed “the matter” for one month “for settlement discussions”, and made provision for its restoration at the end of the month for further directions.
As it happens, this application for an injunction was ‘deeply misconceived’. The Appellant himself later used this phrase to describe his own application (see §26 below). It justified the description for several reasons, in my judgment, including:
The county court does not have jurisdiction to hear any action for libel or slander (see section 15(2)(c) County Courts Act 1984 (‘CCA 1984’)) (see Appendix §95), unless the parties agree otherwise (CPR PD7A, para 2.9(1)). That was not the case here. A claim for defamation and for harassment by publication must be issued in the Media and Communications List of the High Court (CPR r.53.1(3));
It is well-established that an interim injunction is unavailable in defamation where (as here) the defendant seeks to defend the defamatory imputation (see Lord Denning MR in Fraser v Evans [1969] 1 QB 349 at 360-361);
The court lacked jurisdiction to grant an injunction under section 3 of the PfHA 1997 because the jurisdictional reach of the PfHA 1997 is England and Wales (see in this regard Lawal v Adeyinka [2021] EWHC 2486 (QB) at [19]). At all material times, the Appellant has lived outside of the jurisdiction, in Scotland;
Section 12 of the Human Rights Act 1998 (‘HRA 1998’) (‘freedom of expression’) (see Appendix §103) was engaged but neither the Appellant nor his counsel referred the district judge to this provision. A higher test needs to be satisfied before relief can be granted where Article 10 of the ECHR is engaged: see Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 W.L.R. 1003, and Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2005] 1 AC 253 at [22] per Lord Nicholls. As mentioned above, the Appellant had not ticked the relevant box on the form indicating that human rights issues were engaged;
The terms of the injunction were vague and almost certainly unworkable; the Respondent had no control over third parties who may refer to her in “social media groups”. The order oddly permitted the Appellant to determine what he “considered to be defamatory”; moreover, it was impossible for the Respondent to know whether someone was a “present or past” employee of Signature Medical Ltd, a nationwide company, who were not in any event parties to the action.
Points (i) to (iii) above were accepted by Mr Hirst on this appeal.
Pausing there, it is relevant to note that on 4 September 2023 the Appellant issued a similar application in the Stoke-on-Trent County Court against a second individual and, as in this case, applied for an interim injunction; the Appellant again used form N16A to launch that application. On 1 November 2023, the Appellant issued and filed an N208 Part 8 claim form in that second claim. On 31 January 2024, the application for an injunction against the second person was dismissed as totally without merit; it was declared to have been “an abuse of the court’s process”, and the Appellant was ordered to pay substantial costs to the defendant in those proceedings on an indemnity basis.
On 18 September 2023, in these proceedings, the Appellant filed further evidence in support of his interim injunction application and sought its extension; he proposed draft directions and sought a further hearing. As I have earlier mentioned, no claim form under CPR Part 8 (form N208) was ever issued nor did the Appellant serve particulars of claim; the Appellant’s solicitor more than once indicated a future intention to file and issue a claim form “for completeness”. No return date for the injunction was ever listed, nor was a directions hearing fixed.
On 7 November 2023, the Appellant submitted an application notice on form N244 (a general application form) purportedly backdated to 4 July 2023 for issue; it is unclear precisely what purpose this was intended to serve, and the application was never sealed. At that time, the Appellant’s solicitors wrote to the Respondent threatening her with the continuation of the injunction, and seeking costs. Indeed, over a period of months in the autumn the Appellant’s solicitors wrote to the Respondent several times asserting that she was in breach of the injunction, threatening committal proceedings, imprisonment and private prosecution. The Respondent instructed solicitors.
On 27 February 2024, the Respondent issued and served her own substantive application under CPR Part 23 (correctly, on form N244). She sought the following relief:
That the injunction ordered on 3 August 2023 be varied pursuant to CPR r.3.1(7) (see Appendix §107) and CPR PD25A para 5.1(1) to include a cross-undertaking in damages;
That the injunction granted on 3 August 2023 be “revoked” pursuant to CPR r.3.1(7);
Pursuant to CPR r.23.12(a) that the Claimant’s application (and claim insofar as a claim exists) be certified as totally without merit;
That the Claimant do pay the Defendant’s damages in a sum to be advised; and
That the Claimant pay the Defendant's costs of and occasioned by the Claimant's application dated 4 July 2023 (which includes the costs of and occasioned by her application), on an indemnity basis, summarily assessed.
Shortly after the issue of the Respondent’s application for damages and costs (see §24 above), the Appellant (via his solicitor) performed what Mr Eardley KC legitimately referred to as a “spectacular volte face”; the Appellant’s solicitor wrote to the court indicating that there had been “an important procedural irregularity regarding jurisdiction”, and that as no claim form had ever been issued there is “no jurisdiction in the proceedings” to grant the Respondent her relief, adding that “there is no costs jurisdiction”, and that “the court did not have jurisdiction to grant the injunction on 3 August 2023”. Accordingly, the Appellant argued, the application for an injunction was a “nullity”. From this point on he effectively disowned any reliance on the injunction and its penal notice, accepting that the court would now be “bound to discharge” it and argued that the court would not be in a position to grant any further relief.
In this regard, the Grounds of Appeal to this court include this important and illuminating concession (at [5]):
“It is not in dispute that for reasons raised by the [Respondent] on the [27 February 2024] application the [Appellant] realised that the interim injunction application and cause of action advanced were deeply misconceived … no claim form was ever issued and therefore there were no proceedings ('a nullity') and the injunction should on that basis be discharged immediately” (Emphasis by underlining added).
And further (same document):
“The [Appellant’s] position is that whilst it is very regrettable that the [Respondent] became the subject of an interim injunction that should not have been granted and was a misconceived grievance, the [Respondent] did not mitigate the position by taking a number of expedient, cheaper and faster steps to discharge the injunction, such as filing a jurisdiction challenge under CPR r.11 or simply writing to the Court to discharge the injunction when no claim was issued”. (Emphasis by underlining added).
The Respondent’s application was listed before Deputy District Judge Robinson (‘the deputy district judge’ or DDJ Robinson) for case management on 29 April 2024. At the hearing, the Appellant accepted that the court had jurisdiction to discharge the injunction but disputed that the deputy district judge had power to do anything else. However, DDJ Robinson made a number of orders:
He made a declaration that the court had jurisdiction to hear the Respondent’s application;
He discharged the interim injunction which had been made on 3 August 2023;
He varied the 3 August 2023 case management order (under CPR r.3.1(7)) so as to direct the Appellant to issue a claim form by 4pm on the following day (the Appellant did not in fact do this);
He gave permission (if required) to the Respondent to issue a claim form for costs and any other matters thought appropriate in her proceedings by 13 May 2024, to be case managed alongside ‘the current proceedings’;
Directed that the Respondent’s application be listed on the first available date after 10 June 2024.
It is the Respondent’s case that the interim injunction had a devastating impact on her business given her reliance on social media; in the eight months during which the injunction was in place, she says that she lost contact with all of her clients.