Michael James Allen v Douglas Graham Alexander Stuart & Anor

On 20^th February 2026 I sat to hear the claimant’s application for an interim injunction. At the beginning of the hearing, the parties said that acceptable undertakings had been offered and accepted. They asked me to resolve the question of the costs of the application.

I resolved the question of costs and gave ex tempore reasons for my decision.

A number of days later, the parties sent a series of emails to the court attaching draft orders which set out the undertakings and my costs order. However, those emails also set out a dispute as to whether a penal notice should be included in the sealed order. I directed that if the parties wished me to resolve that dispute, they should file short written submissions to enable me to do so. The last submissions were received on Friday 6^th March 2026.

At the end of the hearing I asked both parties to confirm the content of the undertakings that were being given and accepted. They agreed that they were in equivalent terms to the description of the injunction sought which appears on the first page of the application notice. That is to say:

“An injunction restraining each of the Defendants by themselves and/or with others from threatening and or harassing and/or conspiring with others to threaten and/or harass the Claimant and/or those assisting him in his use of the Site and/or arising from the Claimant's service and/or enforcement of the Notice under s12 of the Tort (interference with Goods Act) 1977 dated 2 September 2025”

The claimant’s submissions are straightforward. Mr Cakebread says that undertakings are enforceable as if they were an order of the court. He argues that the inclusion of a penal notice does not create any new restraint, it simply ensures that everyone understands the effect of the undertakings and avoids disputes if contempt proceedings become necessary. He says that the addition of a penal notice is entirely orthodox and should be uncontroversial.

The defendants rely on the decision of HHJ Pearce (sitting as a judge of the High Court) in In re Taray Brokering Limited (also cited as Avery-Gee (as trustee in bankruptcy of Lawrence Coppen) v. Coppen and Anor) [2022] EWHC 2958 (Ch). Mr Palmer argues that that case is authority for the proposition that in the absence of an express request to the court in the application, no penal notice should be included. He says that while Part 81 has been amended since Taray Brokering there is nothing in the current wording of the CPR that renders that decision incorrect. Mr Palmer relies on paragraph 81.4.4 of the Whitebook which reads: “…the penal notice is now part of the order, not separate to it, and accordingly cannot be added by a party of its own volition: HHJ Pearce (sitting as a judge of the High Court in Avery-Gee v. Coppen [2022] EWHC 2958 (Ch).” He argues, further, that CPR 81.4 (2)(e) makes clear that it is not a requirement of an application for contempt that a penal notice appear on the original order.

Mr Palmer gives three reasons why I should not accede to Mr Cakebread’s request:

Taray Brokering concerned an application for committal for contempt. The application was compromised but the court went on to consider what it described as a “discrete point of practice”. The original order had been made and served without attaching a penal notice. After the time period for compliance with the order had passed, the claimant sent a further copy of the order to the relevant defendant but appended a penal notice to it. HHJ Pearce held that the claimant was not entitled to add a penal notice to the order of its own volition. He said that a penal notice forms part of the order itself. Therefore, if a party wishes a penal notice to be attached to an order it must apply to the court to vary the order to enable that to be done.

Mr Palmer’s submission as to the effect of Taray Brokering is incorrect. The Civil Procedure (Amendment) Rules 2004 amended CPR 81 as follows:

“11.

—(1) In rule 81.2, in the definition of “penal notice”, for ““penal notice” to “warning” substitute “A “penal notice” is a prominent notice added to the front of an order by or at the request of a party warning”.

(2)

In rule 81.4(e)—

(a)for “confirmation that” substitute “whether a penal notice had been added to the front of”; and

(b)omit “included a penal notice”.

The explanation for this amendment to the CPR, on the Ministry of Justice Civil Procedure Rules website is as follows:

“Penal Notices– amendments are made to CPR 81 (Contempt of Court) and specifically CPR 81.4(e) in response to caselaw to reverse the decision in Taray Brokering [2022]EWHC 2968 (Ch) to make clear that the Penal Notice in contempt of court proceedings is not part of the order – it is a warning notice added to the order as necessary.”

(see also the Whitebookat paragraph 81.2.1)

It follows that it does not seem to me that Taray Brokering supports Mr Palmer’s submission that I should refuse Mr Cakebread’s request on the basis that no penal notice was specifically asked for in the application. It also appears that while the passage from the Whitebook at paragraph 81.4.4 which Mr Palmer quotes appears in the PDF version online, it has been removed from the electronic version.

It seems to me that no principled reason has been advanced for me refusing Mr Cakebread’s request to include a penal notice in the sealed order. As Mr Cakebread says it merely states the effect of any breach of the undertakings (effects which Mr Palmer says his clients understand) and avoids any dispute about those effects should contempt proceedings become necessary. The speed with which or the reasons why the undertakings were offered do not alter the consequences of breach.

I invite the parties to submit a final draft order in agreed form.