Christian Gotti v Karen Perrett

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.

The application for an injunction issued under CPR Part 23 (see Appendix §112) and CPR Part 25 (or previously CPR PD25A: see Appendix §113) prior to the issue of a Part 7 or Part 8 claim nonetheless constitutes ‘proceedings’, in respect of which key elements of the CPR apply. Therefore the court has the power to make a range of orders in respect of, and ancillary to, the application before it, including its discharge, and costs.

Further or in the alternative, CPR r.3.10 (see Appendix §108) would also be available to the court in these circumstances (i.e., before any substantive claim form is issued) to ‘remedy’ the ‘error of procedure’ in relation to the specific type of claim form used.

For those reasons, more fully explained below, I would dismiss the appeal.

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:

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:

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:

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:

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.

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).

By the time of the second appeal the Respondent had filed a Respondent’s Notice arguing that the defect in the procedure in relation to the claim form could be cured by CPR r.3.10 (see Appendix §108).

In an ex tempore judgment delivered on 30 September 2024 HHJ Salmon identified the issues as follows (I paraphrase):

As to the first question, he identified that the county court’s jurisdiction to grant injunctive relief arises from section 38 CCA 1984 (see Appendix §96). This refers to the court being able to make an order in “any proceedings” in the county court (judgment at [20]). The judge observed that a lay person would “obviously” believe that proceedings were afoot as soon as the N16A had been issued by the court, even if the proceedings had been commenced in the wrong form ([21]). He explained his position more fully thus:

“[26] The word “proceedings” is not in itself defined in the Civil Procedure Rules, but in section 147, the interpretation section of the County Courts Act 1984, “proceedings” includes (my emphasis) “both actions and matters”. An “’action’ means any proceedings in the county court which may be commenced as prescribed by plaint”, and “‘matter’ means every proceeding in the county court which may be commenced as prescribed otherwise than by plaint.”

[27] The word plaint is not defined in the County Courts Act. However, it is probably most closely allied to what in the High Court was a writ, and that is because the definition section of proceedings is the same in the previous Supreme Court Act which dealt with High Court matters, save the word plaint is replaced by the word writ.

[28] Thus, it can be seen that the County Courts Act does not limit the word “proceedings” to just an action or plaint rather it simply includes it. It is clear that the act envisages a wider interpretation than just meaning when matters are started by the issue of a Part 7 or Part 8 claim form. That is also implicit in the fact that CPR 25 indicates that a court can grant an interim remedy is granted before the issue of a claim.

…

[31] … as CPR 25 allows interim injunctions to be made before claims are issued it follows that CPR 2.1 reference to “proceedings” is wider than just what occurs after a Part 7 or Part 8 claim is issued

[32] … In my judgment, it follows that the word "proceedings" can include matters which the court are seised with, that it is asked to make an order about.

…

[35] … "proceeding[s]" in effect in this circumstance occurs when a court is being invoked to do something i.e. in this case to grant an injunction. The fact it was not done by a Part 8 claim form N208, does not mean there were no proceedings at all, making everything the appellant did a nullity”. (Emphasis by underlining added).

At [36] and [37] he described the jurisdictional basis for costs orders found in section 51 of the Senior Courts Act 1981 (‘SCA 1981’) (see Appendix §100 below). He said of this provision (which expressly refers to the “costs of and incidental to all proceedings” my emphasis) that:

“… the power to make costs arise from section 51 and, in my judgment, that supports the view that the proceedings is wider than merely matters which occur after a court has issued a Part 7 or Part 8 claim”.

HHJ Salmon referred at [39] to the fact that CPR r.2 (see Appendix §106) prescribes that “these Rules” (i.e., the CPR) apply to “all proceedings in the County Court” (my emphasis by underlining). “All proceedings in the County Court” must include applications under CPR Part 25 (including applications for “an interim remedy … before proceedings are started”: CPR r.25.2(1)) (see Appendix §113 to §115) and therefore matters occurring before a claim form is issued.

In his concluding paragraph on this first issue (at [46(c)]) he summarised the position as follows:

“The fact the court has an ability to grant injunctive relief prior to the issue of Part 7 or Part 8 claim (not disputed by the appellant) illustrates that “any proceedings” in section 38 covers invocation of the court to grant relief where no Part 7 or Part 8 claim has actually been occurred (sic). The fact one may be issued in the future does not invalidate the fact that the earlier order is made in “proceedings”. (The word ‘occurred’ in the version of the judgment supplied on appeal must, in my view, be a transcription error as it makes no sense. In context, the word is likely to have been ‘issued’).

And later in the same paragraph:

“… “proceedings” should be given their ordinary meaning, which in the context of a court means any course of action that a party is taking to get the court to grant them a remedy. The fact that the process might be flawed or done in the wrong way e.g. without the issuing of an N208 does not negate the fact there were proceedings. It simply means there were proceedings brought in an inappropriate form (which of course might have consequences) not that there were no proceedings”. (Emphasis by underlining added).

In relation to the second issue, he concluded that issuing the N16A “in effect means there are proceedings before the court albeit started using the wrong form and that the court has jurisdiction to correct this breach of the rules under CPR r.3.10.” ([48]).

In this regard, he cited (at [60]) from the commentary to the White Book at [3.10.3], (“Rectifying procedural errors other than errors as to the service of claim forms”), and read into his judgment the extract referencing Reddy v General Medical Council [2012] EWCA Civ 310, in which it was held:

“… that where a party intending to initiate an appeal uses a form other than the appropriate prescribed form and the form contains all the necessary information and could be fairly construed as informing the court and the respondent that by filing it at the court the party intends to commence appeal proceedings, that error can be treated as a procedural error capable of being remedied under CPR r.3.10”.

He further relied upon Hannigan v Hannigan [2000] EWCA Civ 159 at [33]-[34] (‘Hannigan’), wherein this court held that when the wrong form was used to initiate proceedings, the court did have a power to correct matters using its powers under CPR r.3.10:

“… the defendants were given all the information they required in order to be able to understand what order Mrs Hannigan was seeking from the court and why she was seeking it…” it is important not to lose “sight of the wood for the trees” (Brooke LJ at [33]).

The judge concluded that it was possible to deploy the jurisdiction under CPR r.3.10 to cure the defect in respect of the claim form. This translated into paragraph 2 of his order:

“The Appellant’s error of procedure in filing and serving form N16A rather than form N208 is remedied pursuant to CPR r.3.10 and the form N16A shall stand as a claim form in the proceedings”.

He went on to conclude that it would be appropriate (and “overwhelmingly” so) to use CPR r.3.10 to correct the error in this case for three reasons: (1) “not to do so would be an unjustified windfall” for the Appellant, who would otherwise be able to escape the consequences of starting such proceedings in the wrong form; (2) all of the necessary material is in an N16A, as is required in an N208 as set out in CPR r.8.2, and (3) this corresponds with the overriding objective.

The Grounds of Appeal address the two key questions identified earlier by HHJ Salmon which I have paraphrased at §37 above.

The Appellant seeks a declaration from this court that the county court “has no jurisdiction over the parties’ dispute under the [CPR] or the law”.

The more detailed grounds of appeal are lengthy and repetitive. I distil the points raised into the following key complaints:-

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.

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.

In view of my conclusions on the first issue above, it is not necessary for me to decide this second point. However I should make clear that I would dismiss the Appellant’s appeal on this secondary ground too.

Under the CPR certain applications for injunctive relief in the context of anti-social behaviour and harassment are properly brought (indeed are required to be brought) on form N16A; in those cases, the issue of the N16A is to be treated as the issue of a Part 8 claim. An application under section 3 of the PfHA 1997 is not one of those cases (see CPR PD65). A claim under section 3 of the PfHA 1997 is subject to the CPR Part 8 procedure (see CPR r.65.28(1)(a): see §50 above); the notes to the White Book make clear that a form N208 needs to be used to commence the proceedings which are Part 8 proceedings. Thus, it is clear that the Appellant’s claim was on the wrong form.

However, a claim under Part 8 does not require the same level of particularity in its pleading as a claim under Part 7 unless the court so orders (see CPR r.16.1 and notes in the White Book at [8.0.1] “the Pt 8 procedure is designed for the determination of relevant claims without elaborate pleadings” and [16.1.1]). So the fact that the N16A issued in this case under CPR Part 23 is light on this level of detail weakens the Appellant’s argument in this case that the proceedings were not effectively launched and more easily permits tolerance of this error in procedure. After all, CPR r.3.10 is widely drawn and offers the court unlimited discretion, exercisable in accordance with the overriding objective of dealing with cases justly and at proportionate cost (CPR r.1.1(1)). 

The approach outlined in the paragraph above is well-illustrated by Hannigan, where this court took a liberal approach to the technical errors involved when the claimant issued the proceedings in the wrong form where no real prejudice was caused to the defendant, in order to honour the overriding objective in the then relatively newly introduced CPR r.1.1. Brooke LJ said at [36]:

“… one must not lose sight of the fact that the overriding objective of the [CPR] is to enable the court to deal with cases justly, and this means the achievement of justice as between the litigants whose dispute it is the court's duty to resolve. In taking into account the interests of the administration of justice, the factor which appears to me to be of paramount importance in this case is that the defendants and their solicitors knew exactly what was being claimed and why it was being claimed when the quirky petition was served on them. … CPR 1.3 provides that the parties are required to help the court to further the overriding objective, and the overriding objective is not furthered by arid squabbles about technicalities such as have disfigured this litigation and eaten into the quite slender resources available to the parties”.

While Hannigan provides support for a flexible application to CPR r.3.10, Peterson (see §56 above) provides equally important authority for reading CPR r.3.10 “widely” (see [42]). In that case Eyre J held that the term “error of procedure” should not be given an “an artificially restrictive meaning” and cited for this proposition (at [42]) the judgment of Dyson LJ in Steele v Mooney [2005] 1 WLR 2819 at [18]-[24] to the effect that “procedural errors are not confined to failures to comply with a rule or practice direction” (ibid).

Against this background, I am satisfied that there were proper grounds for HHJ Salmon to conclude that the court could remedy the error of procedure by the issuing of the wrong form under CPR r.3.10.

First, the Appellant believed he was commencing a legitimate action by issuing a form N16A, and it would (as the judges below observed) be unconscionable to allow the Appellant to benefit from his own failures. In this regard I note (as HHJ Salmon noted) that in Reddy v General Medical Council (see §43 above) this court held that where the party who was intending to initiate an appeal had used a form other than the appropriate prescribed form (but the form used contained all the necessary information and could fairly be construed as informing the court and the respondent that by filing it at the court the party intends to commence appeal proceedings), that error could be treated as a procedural error capable of being remedied under CPR r.3.10.  While CPR r.3.10 cannot be used to permit something which the rules otherwise forbid (May LJ in Vinos v Marks & Spencer Plc [2001] 3 All E.R. 784 at [20]), that is not the situation here.

Secondly, proceedings had commenced, and the case of Peterson (§56 above) does not in fact assist Mr Hirst. In that case the claimant wished to use CPR r.3.10 to correct “the error of procedure” which was constituted by the failure to pay the correct court fee prior to the issue of the application. The ‘error of procedure’ in that case plainly occurred before the commencement of the proceedings, and the court rightly held that CPR r.3.10 could not come to the claimant’s aid. In this case, the application was properly issued, and the court fee was paid; the court was seised of the claimant’s application and proceedings had commenced. Peterson is useful authority (and supports the Respondent’s position in the instant appeal) for the proposition that CPR r.3.10 can be used (as the extract at §56 above confirms) to remedy “defects of form in proceedings once commenced”.

In my judgment, the error of procedure in filing a N16A rather than a N208 could be corrected under CPR r.3.10, with the effect that the form N16A stands as a claim form in the proceedings. In this respect, I endorse the approach taken by HHJ Salmon.

Both the deputy district judge and the judge were right to reject the Appellant’s claim. The application for an interim injunction on Form N16A – even though it lacked any merit – was nonetheless properly issued. Once issued, it provided a proper basis for the court to exercise its jurisdiction in all respects in relation to that application, including determination of all ancillary issues. It would in my judgment be unconscionable for the Appellant to be able to profit from his actions in issuing a misconceived application without facing the financial and other consequences of doing so.

I recognise that if I were wrong about this, the Respondent would not be without a remedy; she would simply have to launch a new Part 8 claim. However, for the reasons set out above, this step is not required and the existing proceedings should now be listed for further case management in the county court.

For the reasons outlined above, I would dismiss the appeal.

I agree that this appeal should be dismissed for the reasons given by Cobb LJ, which materially endorse the reasons clearly given by the judges in the courts below. I would only wish to highlight my particular agreement with two points already made by my Lord. First, I agree with and endorse the observation that the Appellant’s case involves an affront to common sense. That alone should make the courts at any level intensely reluctant to accede to the Appellant’s case unless compelled by inescapable logic or binding prior authority to do so. As my Lord has explained, and as the judges in the courts below clearly recognised, neither exists in this case. Second, the concession rightly made by the Appellant in this court 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” is fatal to the appeal. I would have been content to dismiss the appeal on that basis alone; but I am grateful to my Lord for his much fuller exposition of the errors in the Appellant’s argument.

I too endorse the observation that to have allowed this second appeal would be an affront to common sense. As Stuart-Smith LJ observes, only if compelled to do so would a court have acceded to the Appellant’s case. I would also add that this court is acutely conscious of the intolerable position in which the Respondent has found herself as a consequence of this litigation and the protracted appeal process.