In a recent decision, the High Court has upheld a decision granting a novel injunction which prohibited a defendant from abusing, harassing, assaulting or threatening the claimant's solicitors until trial or further order: Linemile Properties Ltd v Plater [2023] EWHC 810 (Ch).
The defendant argued that the interim injunction should not have been granted as it did not protect a legal or equitable right which the court had jurisdiction to enforce by final judgment, in particular because the solicitors were not party to the action and there was no pleaded claim corresponding to the injunction sought. The court rejected that argument, finding that it was well within the court's power and discretion.
The decision is of interest in applying the flexible approach to the grant of an interim injunction reflected in the decision of a majority of the Privy Council in Broad Idea International Ltd v Convov Collateral Ltd [2021] UKPC 24 (considered here). Contrary to the defendant's argument in the present case, the decision makes it clear that Broad Idea, while not technically binding on the English court, has fundamentally altered the court's approach to granting interim injunctions, superseding the more restrictive approach reflected in the House of Lords decision in Siskina v Distos CiaNaviera SA (The Siskina) [1979] AC 210.
Under this approach, there is no longer the need to establish a pre-existing cause of action to enforce the legal or equitable right which is to be protected by the injunction, or to bring the case within other recognised categories such as anti-suit injunctions or freezing orders. The court's discretion is a broad one.
Background
The underlying litigation concerned a dispute about the exercise and condition of a right of way in favour of the claimants over a road on the defendants' land. The particulars of claim included a claim under the Protection from Harassment Act 1997 involving allegations of "assault, threats and other reprehensible conduct" by the second defendant.
Following a verbal exchange between the second defendant and the claimant's solicitor, when the solicitor sought to visit his clients' property, the court granted an injunction preventing the defendants from (in summary) abusing, harassing, assaulting, threatening, physically approaching or speaking directly to the claimant's solicitors.
The judge (HHJ Dodd) considered that the injunction was justified as the claimants were entitled to have their legal advisers come to their property, via the right of way over the defendants' land, without the fear of harassment, threats or assault. The injunction also served two other purposes: the prevention of vexatious, oppressive or unconscionable conduct in litigation and the protection of the court’s own processes.
The defendants appealed, arguing that the judge was wrong in granting the injunction as there was no serious issue to be tried, given that the protections provided for did not arise between the parties to the litigation and were not ordered pursuant to any pleaded cause of action. In essence, the judge had granted the injunction as a freestanding remedy concerning non-parties without a claim for a final remedy at trial.
The defendants relied on The Siskina, in which Lord Diplock stated that the power to grant an interlocutory injunction can only be exercised “in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment". The defendants acknowledged that the legal landscape had been reviewed the Privy Council in Broad Idea but argued that the Privy Council had in that case rejected a challenge to The Siskina.
The claimants argued that, on the contrary, The Siskina was no longer good law for the propositions relied on by the defendants, but in any event the court had in personam jurisdiction over the parties and the injunction was granted to protect an interest of the claimants in the proceedings and to prevent injustice.
Decision
The High Court (Sweeting J) dismissed the appeal.
He said that the decision of majority of the Privy Council in Broad Idea, while not binding on lower courts, was persuasive authority that the restrictions on the power to grant interim injunctions, as set out in The Siskina, are not legally sound. In giving the leading judgment in Broad Idea, Lord Leggatt said the following:
“The majority of the Board considers that it is both necessary and important on this appeal to confront and decide the power issue. It is necessary to dispel the residual uncertainty emanating from The Siskina and to make it clear that the constraints on the power, and the exercise of the power, to grant freezing and other interim injunctions which were articulated in that case are not merely undesirable in modern day international commerce but legally unsound. The shades of The Siskina have haunted this area of the law for far too long and they should now finally be laid to rest.”
In the present case, therefore, the judge rejected the defendants' submission that Broad Idea did not disturb The Siskina. Going forward, he said, Broad Idea was likely to be the starting point in relation to the ambit of interim injunctive relief.
In Broad Idea, Lord Leggatt said that there could be no objection to the proposition asserted in The Siskina - ie that an injunction may only be granted to protect a legal or equitable right - "in so far as it signifies the need to identify an interest of the claimant which merits protection and a legal or equitable principle which justifies exercising the power to grant an injunction to protect that interest by ordering the defendant to do or refrain from doing something". However, the proposition could not be maintained if taken to mean that an injunction may only be granted to protect a right which can be identified independently of the reasons which justify the grant of an injunction.
As the judge concluded, Broad Idea supports the view that the law “took a wrong turn” in The Siskina and that courts should take a flexible and pragmatic approach in determining whether to grant injunctions.
Applying that approach, the judge was satisfied that HHJ Dodd did not fall into error. He did not order a free-standing remedy which did not relate to the claim brought. The injunction granted was expressly for the benefit of the claimants, to protect their entitlement to unimpeded legal and expert advice, and was limited to the relief necessary in the context of the claim.
Reliance on The Siskina did not assist the defendants, as the stark expression of principle in that case had been diluted and qualified in subsequent case law. There was no need to identify a reported case in which an equivalent injunction had been made, and it did not matter that the solicitors were not parties to the action or seeking to vindicate any rights. The court had power to guard its own processes and do justice by regulating the conduct of a party before it.
Further, as the underlying claim included a claim for injunctive relief to prevent harassment founded on allegations of aggressive behaviour by the defendant, it was clear that the court could grant an interim injunction to prevent such conduct against the claimants (even taking The Siskina at its highest). It would be an odd result if the court could not similarly grant an interim injunction to prevent such conduct directed at the claimants’ solicitors.
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