Ayobiojo v Easyspace Ltd & Anor

An interim mandatory injunction may properly be refused where the application is made on short notice after a substantial delay from the dispute. Such refusal does not determine the underlying merits, and damages or a final injunction remain available at trial. The Court of Appeal will interfere with a first-instance costs order only in very exceptional circumstances, including where the judge was plainly wrong. An offer providing the relief sought until trial or further order may justify awarding costs against an applicant who seeks an additional, prospective undertaking that the defendant cannot properly give.

Mr Ayobiojo brought proceedings concerning the closure of domain-name and web-hosting accounts after a dispute over a dishonoured cheque and an administration fee. He sought an interim mandatory injunction requiring restoration and continued service. The defendants offered that relief until trial or further order, but declined to undertake never to disconnect the services again.

Sullivan J refused the interim injunction and made a costs order against Mr Ayobiojo. Mr Ayobiojo sought permission to appeal both decisions. The central issues were whether there was any prospect of the Court of Appeal granting interim relief and whether the first-instance costs order should be disturbed.

Lord Justice Longmore refused both applications for permission to appeal.

1. Interim mandatory injunction. There was no realistic prospect of the Court of Appeal granting the requested order. Sullivan J had applied ordinary principles correctly. It was inappropriate to grant a mandatory interim order on short notice where the dispute had begun about six months earlier and the application was made well after the relevant events. The applicant’s ill health and lack of proper advice did not justify departing from those principles.
2. Effect of interlocutory refusal. The refusal of interim relief was without prejudice to the underlying proceedings. Mr Ayobiojo remained free to claim damages and, if successful on the merits, to seek a final injunction. The ultimate outcome could not be predicted at the interlocutory stage.
3. Costs. The Court of Appeal does not interfere with a first-instance costs decision except in very exceptional circumstances, at least where the judge was plainly wrong. Sullivan J was plainly right. The defendants’ open letter offered all the relief then sought, subject to trial or further order. Their refusal to give an undertaking that the services would never again be discontinued did not make the costs order wrong, since they could not know what future circumstances might arise.
4. Solicitors’ note. The court was satisfied that the solicitors’ note of the hearing was at least roughly correct. A professional court attender has a duty to record the argument leading to a decision and the decision itself. In any event, the reasons recorded were the proper reasons for refusing the application.

The applications were therefore dismissed and permission to appeal was refused.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 665, Lord Justice Longmore refused permission to appeal against Sullivan J’s refusal of an interim mandatory injunction and costs order.
• High Court, Queen’s Bench Division: Sullivan J refused the interim mandatory injunction and made a costs order against Mr Ayobiojo.