Nageh v Southend University Hospital NHS Foundation Trust

An appeal concerning an interim injunction becomes otiose where the respondent gives an undertaking providing all the relief that the injunction application could secure. The Court of Appeal’s role is confined to deciding whether justice requires the interim injunction. A first-instance decision on an interlocutory application does not bind the judge conducting the subsequent trial and need not influence that judge’s determination of the merits.

Dr Nageh, a consultant cardiologist, appealed against Swift J’s refusal of an interim injunction restraining Southend University Hospital NHS Foundation Trust from pursuing disciplinary proceedings. The dispute concerned which contractual disciplinary procedure applied and whether there was a serious issue to be tried. Before the appeal, the Trust offered a formal undertaking not to pursue disciplinary proceedings until after the full trial, provided Dr Nageh co-operated in bringing the matter to trial. The central issue was whether the appeal should nevertheless proceed because the interlocutory judgment might affect the trial.

1. Appeal withdrawn. The Trust’s undertaking afforded Dr Nageh all that she could obtain if the application for an interim injunction succeeded. The question whether an interim injunction should be granted had therefore fallen away.
2. The Court of Appeal rejected the submission that the appeal should proceed to remove any supposed procedural disadvantage at trial. Swift J’s conclusion that there was no serious issue to be tried was reached on an interlocutory application and did not bind the judge hearing the substantive trial.
3. The trial judge was not required to be persuaded or influenced by Swift J’s reasoning. The fact that the Trust possessed that interlocutory judgment did not make the procedural position unequal.
4. The appeal was accordingly withdrawn on the Trust’s undertaking.

• High Court, Queen’s Bench Division: Swift J refused an interim injunction on 25 May 2007 and held that there was no serious issue to be tried.
• Court of Appeal (Civil Division): The appeal was withdrawn on the respondent’s undertaking: [2007] EWCA Civ 1432.