Osuji v Holmes & Ors

Under the Civil Procedure Rules, permission to discontinue is required only where the court from which permission is sought is the same court that granted the interim injunction, and the injunction relates to the claim being discontinued. A High Court injunction granted in anticipation of High Court proceedings does not trigger the rule for a different claim later issued in a county court. The injunction order and the proceedings it contemplated must be construed in context. The appeal was dismissed.

This was a second appeal from orders made by HHJ Bailey on 27 May 2010, dismissing an appeal from District Judge Lightman’s decision of 22 March 2010. The claimant had obtained an interim injunction from Sullivan J in the High Court, restraining bailiffs from acting on a magistrates’ liability order. The claimant undertook to commence proceedings within seven days.

Proceedings were subsequently issued in the Edmonton County Court and later transferred to the Central London County Court. They sought damages for trespass, intimidation and harassment. The claimant later served a notice of discontinuance without obtaining permission. The central issue was whether the High Court injunction meant that permission was required under CPR 38.2(2)(i), so that the notice was a nullity.

1. Disposition. The appeal was dismissed. The Court of Appeal held that the claimant did not require permission to discontinue the county court proceedings.
2. Meaning of the rule. CPR 38.2(2)(i) requires permission where the claim being discontinued is one in relation to which the court has granted an interim injunction. The reference to the court in that condition means the same court as the court from which permission to discontinue is sought. CPR 2.3(3) supported that construction by recognising that the court may mean a particular county court, district registry or the Royal Courts of Justice.
3. Identity of the proceedings. The injunction was granted by the High Court. The application and skeleton argument presented the intended proceedings as High Court proceedings to challenge the liability order, by case stated or possibly judicial review. The later county court damages claim was a different claim and was not the claim in relation to which the injunction had been granted.
4. Construction of the order. The undertaking to commence proceedings within seven days had to be understood, in context, as an undertaking to commence proceedings in the Queen’s Bench Division of the High Court. The order’s failure to comply strictly with Practice Direction 25A paragraph 4.4(3) did not alter that construction.
5. New argument. Permission was refused for the proposed argument that the notice of discontinuance was conditional. It was advanced about ten months late, had not been raised in the earlier grounds or the grounds before this court, and disclosed no important point of practice or principle or other compelling reason for a second appeal.

• Court of Appeal (Civil Division) — Elias LJ granted permission for the second appeal. The appeal was dismissed.
• Central London Civil Justice Centre — HHJ Bailey dismissed the claimant’s appeal on 27 May 2010.
• District Judge Lightman — The claimant’s application concerning the validity of the discontinuance and the need for permission was dismissed on 22 March 2010.