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

Mr Hirst acknowledges the unusual situation which arises in this appeal, namely that it is the claimant not the defendant who is arguing that the court has no jurisdiction to make the order sought. He argues that the form N16A did not represent a ‘prescribed’ originating process in these circumstances and it follows that there are no ‘proceedings’ in which the court can now grant any relief to the defendant.

He draws attention to the types of claim for which a form N16A can constitute an effective originating process, including Part V of the Housing Act 1996, and Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014. An application under the PfHA 1997 is not one of those claims; indeed he points out that by reason of CPR r.65.28 an application under the PfHA 1997 “shall” be subject to the Part 8 procedure claim, and as the notes to the White Book make clear “one effect of this is that claims must be issued in Form N208”.

He points out (relying on Barton v Wright Hassall LLP [2018] 1 WLR 1119), that for the purposes of calculating the limitation period and for determining the exact point from which time runs for the taking of further steps or the entry of judgment in default, there needs to be a clear date on the form so that it can be ascertained when the process is issued. It is from that point that the defendant is subjected to the court’s jurisdiction (Barton v Wright Hassall at [8]). Surprisingly, there is no date on a form N16A, and in this respect he seeks to distinguish Hannigan.

He further argues that notwithstanding that an application under section 3 of the PfHA 1997 should be brought under Part 8, the county court’s jurisdiction is determined by CPR r.7.2 which provides that “proceedings are started when the court issues a claim form at the request of a claimant”. He argues that the current dispute is a nullity.

In developing his argument he relies on the judgment of Tugendhat J in Citation plc v Ellis [2012] EWHC 764 [10]-[16], including:

“[16] In summary I take the law to be: (1) if no claim form is issued, then there is no litigation and so there are no costs of litigation, whatever costs may have been incurred in complying with a Pre-Action Protocol; but (2) if a claim form is issued, the costs incurred in complying with a Pre-Action Protocol may be recoverable as costs 'incidental to' any subsequent proceedings”.

He further cites Webb Resolutions Ltd v Countrywide Surveyors Ltd, 4 May 2016 (where Master Nurse established that there is no jurisdiction to award costs unless there is a claim form served (at [21])) and Stubbins Marketing Ltd v Difrancesco [2023] EWHC 515 (Ch) at [34-36] to a similar end.

He argues that the CPR are not engaged unless a specific pre-action jurisdiction applies which provides a basis for there to be a dispute or hearing before the court under CPR Part 25. He argues that the application for pre-action injunction in this case did not fall into any such category: it did not satisfy the test of urgency (under CPR PD25A), nor was it for pre-action disclosure (CPR Part 31). He also relies on the fact that the pre-action injunction order is not of indefinite duration given that “the applicant must undertake to the court to issue a claim form immediately or the court will give directions for the commencement of the claim” (CPR PD25A para 4.4(1)).

On the second issue, Mr Hirst argued that CPR r.3.10 cannot be used to treat the N16A as an N208 claim form; CPR r.3.10 would only apply if there were any ‘proceedings’ and there are none before the court. He argues that the claimant has taken “no step at all” rather than a procedural step which contained an error. He goes on to say that because the application was ‘deeply misconceived’ (see §20 above), there could never have been any effective proceedings and this supports his assertion that the process was “a nullity”. He further argues that CPR r.3.10 cannot be used to correct procedural errors which occur before issue of the claim; in this submission he relies on Peterson v Howard de Walden Estates Ltd [2023] EWHC 929 (‘Peterson’) at [58]: r.3.10 “…is not concerned with matters occurring before the commencement of proceedings (although it can be used to remedy defects of form in proceedings once commenced)”.

In responding to the appeal, Mr Eardley points to the “unjustifiable” conduct of the Appellant throughout the period of this ill-fated litigation; he observes that the case presented by the Appellant “could not be less attractive”.

In support of the contention that the injunction application constitutes ‘proceedings’ he reminds the court of the extensive and indisputable equitable jurisdiction of the court to grant injunctions in personam. He relies on Fourie v Le Roux [2007] UKHL 1; [2007] 1 WLR 320 at [25] and at [30] where Lord Scott had said:

“[30] Provided the court has in personam jurisdiction over the person against whom an injunction, whether interlocutory or final, is sought, the court has jurisdiction, in the strict sense, to grant it.”

Using the example of a pre-claim freezing order, Lord Scott had continued, in a passage which in my judgment is important for the resolution of this appeal, at [32]:

“I would agree that, without the issue of substantive proceedings or an undertaking to do so, the propriety of the grant of an interlocutory injunction would be difficult to defend. An interlocutory injunction, like any other interim order, is intended to be of temporary duration, dependent on the institution and progress of some proceedings for substantive relief. But it is not in dispute that in suitable circumstances a freezing order may be, and often is, granted and served on the respondent before substantive proceedings have been instituted. Such an order is not a nullity. It is of immediate effect. If proceedings for substantive relief are not instituted, the freezing order may lapse in accordance with its own terms or, on an application by the respondent, may be discharged. But none of this indicates that the court had no jurisdiction to make the order. No “activation” of the jurisdiction is needed”. (Emphasis by underlining added).

Mr Eardley buttresses this argument with reliance on the Supreme Court’s judgment in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47; [2024] AC 983 (‘Wolverhampton CC v London Gypsies and Travellers’) at [43] and specifically the express acknowledgement that: “it is now well established that the grant of injunctive relief is not always conditional on the existence of a cause of action”.

He further alludes to the wide powers of the county court under section 38 of the CCA 1984 to make final or interlocutory orders “in any proceedings”, and the non-exhaustive interpretation of the word ‘proceedings’ in section 147 (ibid), which expressly “includes both actions and matters”. He argues that conventional and well-recognised pre-action applications for disclosure and inspection under section 52 of the CCA 1984 (see Appendix §97), which carry not insignificant implications for the defendant, must be regarded as “proceedings” so as to be covered by the CPR.

He drew attention to the lack of definition of the term ‘proceedings’ in the CPR and referenced Plevin v Paragon Personal Finance Ltd [2017] UKSC 23; [2017] 1 WLR 1249 (Plevin), and specifically the view expressed by the Supreme Court in that case that “proceedings” is not a defined term in the legislation (in that case the Legal Aid, Sentencing and Punishment of Offenders Act 2012) nor is it a term of art under the general law; he points to the comment in the judgment of the court in that case at [19]:

“Its meaning must depend on its statutory context and on the underlying purpose of the provision in which it appears, so far as that can be discerned”.

Given that under section 51 SCA 1981 the costs of and incidental to all proceedings in the county court are in the discretion of the county court, it follows, argues Mr Eardley, that the court in this case has jurisdiction to make an order for costs in favour of the Respondent arising from the interim injunction obtained by the Appellant on 3 August 2023.

He concludes by reminding the court of Tugendhat J’s comments in Gray v UVW [2010] EWHC 2367 (QB) at [66] to the effect that where a party obtains an interim injunction prior to issue of a claim form, and then fails to issue a claim in breach of an undertaking to the court, “there must be an investigation by the court. An explanation must be provided. If the explanation is inadequate, then sanctions must follow.” In this regard he argued that it was perfectly proper for the court to deploy CPR r.3.10 to correct the error of procedure.