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

A claimant applies for an injunction in the county court under the Protection from Harassment Act 1997 (‘PfHA 1997’). The application is made under the Civil Procedure Rules (‘CPR’) Part 23, and is presented on form N16A, which is the general form of application for an injunction. The defendant is served. Following a short, contested hearing, the court grants the injunction. No undertaking to issue a claim form is given to the court or recorded on the order, neither is any undertaking in damages. No claim form is in fact ever issued.

Seven months later, the defendant issues an application under CPR Part 23 to discharge the injunction, together with an application for damages and costs. On receipt of the defendant’s application, the claimant capitulates and accepts that the application for the injunction was ‘deeply misconceived’ and should never have been made. The claimant accepts that the order should never have been granted, and consents to an order for its immediate discharge.

At the hearing of the defendant’s application for discharge of the injunction, the claimant argues that the court has no power to make an order for damages and costs in favour of the defendant as there are no ‘proceedings’ before the court in which such an order can be made; the claimant maintains that as no Part 7 or Part 8 claim was ever issued, the injunction proceedings were essentially a ‘nullity’. The effect of the claimant’s argument, he concedes, is that he can benefit from a procedural error of his own making.

The issue which is at the heart of this second appeal (brought under CPR r.52.7) is whether the court has power to make orders ancillary to the discharge of an injunction (i.e., for costs and damages in favour of the defendant) where at the time of the injunction order: (i) no undertaking in damages was offered or recorded, (ii) no undertaking to issue a claim form was taken and no equivalent direction given, and further where (iii) no claim form was in fact ever subsequently issued.

In the courts below, both the deputy district judge and the circuit judge on appeal rejected the claimant’s argument, concluding that there were proceedings before the court, and that the court has jurisdiction to make orders which would be effective to allow the defendant to seek her costs and damages when the injunction was discharged. On first appeal in the county court the judge referred to the claimant’s argument as “an affront to common sense”.

Lewison LJ granted permission to appeal to this court. He also explicitly regarded the claimant’s argument as “an affront to common sense”, but added:

“The centrality of a claim form (either under part 7 or Part 8) to civil proceedings is one of considerable importance. I regard that as a compelling reason for the grant of permission to bring this second appeal, irrespective of its prospects of success”.

Linked to the main issue on appeal is whether CPR r.3.10 can be invoked in these circumstances to enable the court to treat an application for an injunction on form N16A as a Part 8 claim form (form N280).

The numerous statutory provisions and rules within the CPR which are relevant to this application and appeal, and which are referred to in this judgment, are set out in an ‘Appendix’ hereto.