Cinpres Gas Injection Ltd v Melea Ltd

An injunction made without notice is an exceptional remedy. Notice should be given unless the case is genuinely urgent, notice would frustrate the order’s purpose, or notice is impracticable in the available time. The more serious the application, the stronger the reason for notice. A party seeking interim relief without notice must also provide a proper record of the evidence and submissions, including a note of the hearing, and must serve the respondent as soon as practicable. The court may protect witnesses and its proceedings from pressure, but the order must be proportionate and must not unnecessarily obstruct legitimate evidence-gathering. On the return day, the court’s discretion as to the form and scope of the injunction is at large.

The claimant sought to maintain an injunction made by Patten J on 9 September 2005 without notice to the defendant. The injunction was intended to prevent alleged interference with a witness, Mr Hendry, in proceedings concerning ownership of an invention and related patent rights.

The defendant applied to set aside or vary the order. It complained that notice had not been given, that the evidence and hearing had not been properly recorded and served, and that the injunction was drawn too widely. The central issues were whether the procedural safeguards for without-notice relief had been observed and what form of order was proportionate to protect the witness and the court’s proceedings.

1. The existing order was discharged and replaced. The court substituted an injunction restraining contact by or on behalf of Mr Ladney with Mr Hendry concerning matters in issue in the action, or evidence which he had or might give, except through lawyers instructed by both parties.
2. An injunction is a serious interference with the ordinary position of the parties. The court’s duty to protect its proceedings includes taking proper and proportionate steps to prevent pressure being placed on witnesses. That duty does not dispense with notice.
3. Applications without notice are confined to genuinely urgent cases, cases in which notice would frustrate the purpose of the order, and cases where giving notice is impracticable in the available time. Any failure to give notice must be justified to the judge. Here notice could plainly have been given, and its omission was a grave procedural fault.
4. The purpose of the safeguards in Civil Procedure Rules 1998 Part 25 and the associated practice direction is to ensure that the respondent knows the case it must meet and that the application is dealt with efficiently and proportionately. Evidence should be recorded in a witness statement or other proper written record. Counsel and solicitors must take a proper note of the hearing and provide it to the respondent as soon as practicable. Reliance on the possible availability of a court transcript is insufficient.
5. The court would not revisit the earlier judge’s exercise of discretion in making the order over the trial, since no trial date had then been fixed. However, on the first return day in the respondent’s presence, the discretion as to the form and scope of the order was at large. The injunction had to be confined so that it did not inhibit ordinary evidence-gathering, including possible proceedings to obtain evidence for foreign litigation under section 1782 of Title 28 of the US Code.