Kinsley v The Commissioner of Police for the Metropolis

Appellate courts should intervene only rarely in a first-instance decision on interim injunctive relief. Where the judge applies the correct framework, identifies a serious issue to be tried, considers the balance of convenience and reaches a conclusion reasonably open on the evidence, permission to appeal should be refused unless the decision is plainly wrong.

At an interim hearing, the judge may decide the application from written material without viewing or hearing audio-visual recordings. Evidence arising after the decision cannot demonstrate an error in that decision. It should ordinarily be advanced, if necessary, in a fresh application on notice to the High Court. Repeated interim applications should not distract from an early final trial. Similar restraint applies to challenges to discretionary costs orders.

The applicant alleged a prolonged campaign of police harassment against himself and his family. He sought interim injunctive relief in civil proceedings against the Commissioner of Police for the Metropolis, including restrictions on harassment and the confiscation of recording equipment.

Foskett J refused the application on 27 May 2011. He accepted that there was a serious issue to be tried but concluded that the balance of convenience did not justify an injunction, that an order concerning the camcorder could not be formulated effectively, and that damages might provide an adequate remedy. Permission to appeal was refused on paper by Maurice Kay LJ. The matter came before Richards LJ as a renewed application for permission to appeal, including reliance on recordings and incidents occurring after the first-instance decision.

The renewed application for permission to appeal was refused. None of the proposed grounds had a real prospect of success.

1. Limited appellate intervention. The refusal of interim relief involved an exercise of discretion or judgment with which an appellate court should be very slow to interfere. Foskett J applied the correct legal framework and reached a conclusion reasonably open to him. His decision could not be described as plainly wrong.
2. Interim injunction assessment. The judge was entitled to find that there was a serious issue to be tried and then to consider the balance of convenience. He was entitled, in an interim application, to proceed on the written material without viewing or hearing the audio and video recordings. The matters considered were legitimate, including the circumstances in which the police attended, the risk that an injunction could discourage officers from performing their ordinary duties, the absence of stronger evidence of recent harassment, and the possible adequacy of damages.
3. Camcorder and recording evidence. The decision to leave the issue of confiscation to the civil and criminal proceedings was reasonably open to the judge. An interim order risked impeding police duties, and the judge considered that an effective order could not be formulated.
4. Fresh evidence. Evidence of later incidents, or further evidence concerning earlier incidents, could not establish that the judge had erred in refusing relief. If the applicant wished to pursue interim relief on the basis of that material, the proper course was a further application on notice in the High Court. The Court of Appeal discouraged that course because an early final trial was the appropriate means of resolving the substantive dispute.
5. Costs and allegations against the judge. The costs order was also a discretionary decision with which the appellate court should rarely interfere, and no tenable basis for intervention was shown. The allegations of bias, predetermination and subconscious racism had no basis.

• Court of Appeal (Civil Division): Maurice Kay LJ refused permission to appeal on the papers. Richards LJ, on the renewed application, refused permission to appeal and made the order that the application be refused.
• High Court of Justice, Queen’s Bench Division: Foskett J refused the application for interim injunctive relief on 27 May 2011 and made a costs order which was not enforceable until conclusion of the proceedings.
• Court of Appeal (Civil Division): an earlier decision, [2010] EWCA Civ 953, had reinstated the civil claim after it had been struck out.