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

In a clearly structured ex tempore judgment, DDJ Robinson gave succinct reasons for his case management decision. He summarised the background history, adverting to the fact that the application for the interim injunction had been issued in accordance with CPR Parts 23 and 25; he recorded the absence of the undertaking to issue the claim form, and the absence of a cross-undertaking in damages. He rejected the argument advanced by the Appellant that an injunction could not in fact validly have been granted prior to the issuing of the claim form; he confirmed that the injunction was valid. He then turned to what he described as a “linked issue” which was:

“[10] …whether there is a valid set of proceedings, and whether I can entertain the defendant's application today because the claimant says the court does not have jurisdiction”.

He described the argument as “ingenious”, and in determining that it must fail, he added, in a passage which encapsulates the outcome:

“[11] The Civil Procedure Rules expressly anticipate the court dealing with an application for an interim injunction or other interim remedy before a claim form is issued. So that is the starting point. It seems to me that the court must then have jurisdiction under the rules to go on to deal with that application and anything that might arise under that application.

[12] The application for an interim injunction was made under, and in accordance with, the Civil Procedure Rules and the Rules must be interpreted in such a way that the court has a continuing jurisdiction to deal with an order that it has made prior to the issue of a claim form. Were it otherwise, then an interim injunction that is granted before a claim form is issued would effectively be left floating. The court would be making an order, on an interim basis, but then would have no jurisdiction to do anything further with or about that interim order, until the claimant issues a claim form. That cannot be right.” (Emphasis by underlining added).

He observed that if a claim form had been issued prior to or immediately following the injunction hearing, as it would in the usual way, “we would not be in this situation”, adding:

“[13]… the claimant should have issued a claim form (and said that he would). If a claimant then refuses or declines to issue a claim form, it cannot be the case that the rules should be interpreted in such a way that the court is left powerless to deal with the consequences and powerless to take any further action.

[14]… I accept that part 7 states that proceedings are started when the court issues a claim form at the request of the claimant. In my judgment, in circumstances where the court has made an interim injunction in accordance with the Civil Procedure Rules, on an application which was issued under those Rules, then the court has ongoing jurisdiction to continue to take steps under those Rules, pending the claim form being issued. That must particularly be the case in circumstances where the rules expressly anticipate those steps being taken – here, the claim form being issued in short order after the interim remedy has been granted”. (Emphasis by underlining added).

He indicated that he could invoke his powers under CPR Parts 23, Part 25 and CPR r.3.1(7) to vary or alter the order, to rectify the defect which had been identified, namely to insert the “usual provisions” into the order, including the requirement on the Appellant to file a claim form. He referred to the default position which would be that the Respondent would have permission to file her own Part 8 claim form by which she could seek a costs order against the Appellant. He said that “absent a claim form, I cannot today make any order for costs in relation to these proceedings, nor in relation to the other (as yet unissued) proceedings by the defendant” ([17]).

The deputy district judge more than once described the Appellant’s position at the hearing as “unattractive”. He added:

“[18] I also want to record by way of a recital in my order today that the claimant has sought to rely on his own failure to issue a claim form, despite the requirements of the Civil Procedure Rules, despite the fact that he has relied on the interim injunction that he has obtained and its continuing force, and despite the fact that he represented that a claim form would be issued. That recital is an important matter for a judge on any future occasion to be aware of”.

In refusing permission to appeal, the deputy district judge amplified his reasons:

“At this hearing [the claimant] sought to argue that there were no “proceedings” under CPR 7.2(1) so the court could not make further orders. I decided that the interim injunction was validly granted (albeit additional procedural directions for the issue of a Claim Form that should have been made were not made). In circumstances where an interim injunction has been granted under the CPR and further procedural steps that ought to have been taken have not been taken by [the claimant] in my judgment the Rules should be interpreted in such a way that the court retains jurisdiction to make further orders under the CPR to regularise the position to ensure that a claim is issued in which [the defendant] will seek its costs. The court therefore retains jurisdiction under CPR rule 25.2(3) to direct a claim to be issued and jurisdiction under CPR rule 3.1(7) to vary or revoke the previous order.”

The reference to CPR rule 25.2(3) in the above extract is to the previous (i.e., before 6 April 2025) version of the CPR. The relevant paragraph is now CPR rule 25.2(4).

The Appellant filed an appeal notice. With obvious reluctance (the “practical effect of the claimant's submissions are unattractive”) permission to appeal was given on 21 May 2024 by His Honour Judge Salmon (‘the judge’ or HHJ Salmon).