CA-2024-002323 - [2025] EWCA Civ 1168

In agreement with the judges below, and broadly for the reasons they articulated, I am satisfied that the issue by the county court of the N16A in this case constituted the commencement of proceedings to which various relevant provisions of the CPR apply. The court accordingly retained an active jurisdiction, enabling it to make further orders in favour of the defendant (the Respondent to this appeal). I respectfully endorse the judgments below for the following and expanded reasons.

First, it is clear that in granting the application the court was exercising an equitable jurisdiction confirmed by statute (section 38 CCA 1984, as derived from section 37(1) SCA 1981: see Appendix §99). Section 38 CCA 1984 refers to the court’s 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”, and this contemplates a wider range of proceedings than merely Part 7 or Part 8 claims. As indicated above, Lord Scott’s comments (with which the other members of the judicial committee agreed, and which I have underlined in the section of the judgment which I have reproduced at §58 above) in Fourie v Leroux are highly pertinent. In this regard, it is also instructive to look again at Wolverhampton CC v London Gypsies and Travellers at [17]:

“The power of courts with equitable jurisdiction to grant injunctions is, subject to any relevant statutory restrictions, unlimited”.

While historically it may well have been assumed that an injunction had to be founded on an existing cause of action against the person enjoined (see Lord Diplock in Owners of cargo lately laden on board the Siskina v Distos Cia Naviera SA [1979] AC 210), the Supreme Court in Wolverhampton CC v London Gypsies and Travellers (see §59 above) effectively laid such a proposition to rest as a bygone “rigid doctrine”, and in so doing confirmed that the grant of injunctive relief is not always conditional on the existence of a subsisting cause of action.

Secondly, if there was still doubt about this, I am satisfied that the term ‘proceedings’ in section 38 CCA 1984 itself is wide enough to include an application for pre-claim injunctive relief. The term ‘proceedings’ is not defined in the CPR and is (as Mr Eardley observed) used inconsistently within the CPR to refer to the period after a claim is issued, but also to the period in which the court is exercising a jurisdiction in the strict sense before a claim is issued. It is clear that the CPR apply generally to “all proceedings” in the county court (see CPR r.2.1(1)(a)).

Although CPR r.2.1(2) expressly disapplies the CPR to certain listed types of proceedings, that list does not include interim or pre-action applications (CPR r.23.2(4)-(5)) (see Appendix §112) or interim applications (CPR Part 25). HHJ Salmon was therefore correct when he said at [31] of his judgment that the “CPR 2.1 reference to “proceedings” is wider than just what occurs after a Part 7 or Part 8 claim is issued” (§38 above). Section 147 of the CCA 1984 provides a non-exhaustive definition, and in considering its application it is right to recall that it is not “a term of art under the general law” (Plevin).

HHJ Salmon offered a simple and attractive formulation of his approach: the word “proceedings” includes all applications with which the court is seised, and in respect of which it is being asked to make orders (see [32] §38 above), or where the court “is being invoked to do something, i.e. in this case to grant an injunction” ([35] at §38 above). Later (at [46(c)] of his judgment) he said that when a party takes “a course of action” in order to obtain a remedy from the court these will be “proceedings” (see §41 above) even if “in the wrong format” ([21] ibid).

CPR PD2C makes clear that ‘starting proceedings’ in the county court may be by ‘claim or application’; the definition of “application notice” in this regard in CPR r.23.1 is “a document in which the applicant states their intention to seek a court order”. This represents a significant dilution of the principle urged on us by Mr Hirst that a Part 7 or Part 8 claim form is necessary to launch ‘proceedings’, and in itself defeats his claim that the application was a ‘nullity’. Thus when the county court issues the initiating application, ‘proceedings’ are commenced and from that moment on the relevant parts of the CPR apply. The issuing of these types of ‘proceedings’ at this stage would not have the consequence of stopping time running for limitation purposes and starting it for other procedural steps; that arises only with the issue of the substantive claim.

The court’s jurisdiction (i.e., “in the strict sense” per Lord Scott in Fourie v Le Roux at [30]) to make orders within these proceedings exists whether the proceedings are meritorious, unmeritorious, or (as in this case) deeply misconceived; the strength, or otherwise, of the application emerges only later. This point was identified and articulated correctly by the judges below. DDJ Robinson observed that the interim injunction was “validly granted” even if the order was in some respects defective and the application misconceived. HHJ Salmon repeated and enlarged on this point in the second passage which I have reproduced at §41 above, in which he commented that even if the process is flawed “or done in the wrong way” it does not mean that there are no proceedings ([46(c)] of his judgment).

In short, and as HHJ Salmon had observed earlier in his judgment, if the Appellant were correct in his interpretation of the rules, then he could take the advantage of an interim injunction which bound the Respondent, but on its discharge the court would be powerless to intervene in respect of costs or losses: “in short a win, win outcome for the Appellant” (HHJ Salmon judgment at [14]).

Thirdly, and in any event, the county court has a discrete costs’ jurisdiction which could be properly invoked in the instant case. Section 51 SCA 1981 establishes that the “costs of and incidental to all proceedings in… the county court, shall be in the discretion of the court”. The word ‘proceedings’ in this context must be given the same wide interpretation as discussed above; it is of course well-recognised that orders for costs are made in relation to pre-claim applications for injunctions under this head, a point which HHJ Salmon recognised at [36] and [37] of his judgment: “if there are proceedings, the court can make an order [for costs]”.

I was unpersuaded by the line of authorities cited to us by Mr Hirst including Citation Plc v Ellis; the cases cited are not authority for the proposition that the power to award costs or to make other orders in that situation is somehow contingent on the prior or subsequent issue of a claim form. Civil courts routinely make costs orders when they hear urgent interim injunction applications, whether or not a claim form has been issued or will be issued in due course.

Fourthly, if the Appellant were to be correct in his submission that the injunction application launched in July 2023 did not constitute ‘proceedings’, then this would effectively disapply the overriding objective (CPR r.1) (see Appendix §105) to the management and determination of that application; there would be no obligation on the court under the CPR to deal with the application “justly” and at proportionate cost. That simply cannot, in my judgment, be right. Apart from any other consideration, CPR r.1.2 (see again Appendix §105) requires the court, when dealing with a case in compliance with the overriding objective, to ensure “that the parties are on an equal footing and can participate fully in proceedings”. This objective must surely apply just as firmly to “proceedings” at a pre-action injunction stage as it does to any other stage of the “proceedings”.

After all, many interim and pre-application injunctions, including the injunction issued in this case in August 2023, have far-reaching consequences for the respondent/defendant. By contrast, some interim orders render unnecessary the launch of a substantive claim. It would therefore be absurd if the requirements to deal with such an application ‘justly’ and ‘fairly’ did not apply. Mr Hirst relies on the fact that an interim (pre-application) injunction is only ever made for a limited duration, but this does not begin to address the point; the interim injunction in this case (as in most cases of its kind) took immediate effect, and (as the Appellant himself reminded her many times) was designed to, and did (purportedly), bind the Respondent in relation to her conduct in her personal and/or her working life. Lord Scott’s discussion of a comparable order (i.e., a freezing injunction) in Fourie v Le Roux at [32] (see §58 above) illuminates the point well: while there are issues of propriety if no substantive proceedings are issued after the grant of a pre-action injunction, that does not make the injunction any less effective or potentially draconian.

Fifthly and finally, the fallacy of Mr Hirst’s submissions were ultimately exposed in my judgment by the concession appearing in his written argument to this court, namely that the court below “had the power to make the interim injunction on 4 Aug 2023 and had, as a corollary, a jurisdiction to discharge it on 29 March 2024”. The Appellant’s acceptance of the court’s “jurisdiction” both to make and discharge the interim injunction is inconsistent with his contention that the application was effectively a ‘nullity’ and/or that it did not have “jurisdiction” (or the power) to make ancillary orders, including as to costs, and as to damages incurred by the Respondent as a result of the wrongful grant of the injunction.

It follows that both judges in the court below were correct in their understanding, application and articulation of the law. Their judgments were commendably clear, concise, and focused, expressing themselves in plain and accessible language, providing practical and cogent responses to the appellant’s inventive submissions.

DDJ Robinson was entitled to exercise his powers under the CPR in the way that he did, so as to enable the Respondent to pursue a claim for her costs of defending the injunction, and damages. HHJ Salmon did not err in law, nor was he wrong, when, in September 2024, he dismissed the Appellant’s appeal.