Schmidt v Wong

A judge does not ordinarily err by failing, without an application or submission from the parties, to identify and grant a different form of procedural relief. Enhanced case-management powers do not make the judge responsible for devising relief that a represented claimant has not sought.

A freezing injunction is a remedy ancillary to an extant cause of action, not separate proceedings capable of compulsory transfer from the county court. Where the county court lacks power to grant the injunction, the proper course is an application in the High Court under the High Court and County Courts Jurisdiction Order 1991. A judge authorised to sit in the High Court cannot thereby convert a county court sitting into a High Court sitting.

The claimant, a residential tenant, alleged that her landlord had negligently failed to maintain a manhole cover. Before issuing her personal-injury claim, she applied in the county court for a freezing injunction over the landlord’s assets, including the rented property. The landlord lived and worked in Hong Kong.

HHJ Harris QC dismissed the application because the county court lacked jurisdiction to make the order. On appeal, the claimant contended that the judge should have transferred the case or application to the High Court, or should have sat as a Deputy High Court judge and determined the application. The central issue was whether the judge had erred by not taking steps that had not been sought below, and whether transfer was available for a freezing injunction ancillary to county court proceedings.

1. Appeal dismissed. The new grounds could not succeed because neither transfer nor a High Court sitting had been requested or suggested before the county court judge. A judge’s more active case-management role does not generally require the judge to identify an appropriate form of relief which a represented claimant has not advanced. A limited exception may arise, for example, where a party is unrepresented.

2. The court added observations to clarify the procedure. Under the statutory scheme, proceedings and remedies are distinct. A freezing injunction is a remedy ancillary to an extant cause of action; it cannot be granted in the air. The relevant proceedings were the negligence action, which was not required to be in the High Court. The injunction application could not be detached from that action and treated as free-standing proceedings requiring transfer under section 42 of the County Courts Act 1984.

3. Section 42(1)(b) did not require striking out merely because proceedings had been started in the wrong court. Applying Re NP Engineering and Security Products Ltd [1998] 1 BCLC 208, procedural error ordinarily calls for transfer where appropriate, unless ordinary grounds for striking out exist.

4. The correct course was a High Court Part 23 application under paragraph 3 of the High Court and County Courts Jurisdiction Order 1991, in support of the county court action. No separate Part 7 or Part 8 claim was required. A judge authorised to sit in the High Court could not use that authority to turn an existing county court hearing into a High Court hearing; any High Court application would be managed by the relevant High Court registry.

5. The court also stressed that freezing injunctions are exceptional. Parties should consider carefully the justification for such relief, particularly in modest county court claims and where the order would intrude upon defendants or third parties.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal: [2005] EWCA Civ 1506.
• Oxford County Court, HHJ Harris QC — dismissed the claimant’s application for a freezing injunction for want of county court jurisdiction.