Al Hajeri v Bennett

An interim injunction requires evidence establishing a serious question to be tried concerning the claimant’s asserted rights in the property to be restrained. Where the evidence does not identify the relevant property with sufficient certainty, and the defendant’s evidence indicates that the allegedly sold property is no longer in his possession, injunctive relief will not be granted.

Orders requiring a defendant to provide information, disclose documents or deliver up electronic material which may amount to obtaining evidence against himself are exceptional. Civil litigation is ordinarily adversarial, and the claimant must plead and prove its case. Such orders should not be made routinely or absent exceptional circumstances.

The claimants sought interim orders restraining the defendant, a falcon breeder, from selling or disposing of hunting birds at his premises. They also sought information, documents and delivery up of electronic information.

The claim was based on alleged oral agreements under which the defendant had agreed to sell his business stock, or specified birds, and to provide services in relation to the birds. The pleadings did not clearly identify the contracting claimant, the contractual arrangements or the birds said to have been sold. The purchase price had not been paid in full.

The defendant stated on oath that the birds covered by the sale had already been sold, while the birds remaining in his possession were his own or belonged to his sons. The issues were whether there was a serious question to be tried as to ownership of the birds in his possession and whether the requested information and disclosure orders were justified.

1. The application was dismissed. The court was not satisfied, applying the guidance in American Cyanamid and Ethicon, that the material established a serious question to be tried concerning ownership by either claimant of any birds currently in the defendant’s possession. The contractual arrangements were vague, no specific birds were identified, and there was no evidence contradicting the defendant’s sworn account that the allegedly sold birds had been disposed of.
2. An order restraining dealings with all birds in the defendant’s possession was inappropriate. The possibility that some birds might later be found to belong to a claimant did not justify an injunction on the evidence available.
3. The requested orders for information, documents and delivery up of electronic information were analogous to orders requiring a defendant to provide evidence of his own wrongdoing. Following the principle stated by Mackay J in Aon Limited v JCT Reinsurance Brokers Limited [2009] EWHC 3448, such jurisdiction may exist but is extraordinary and should be exercised only in exceptional circumstances.
4. Civil litigation is ordinarily adversarial rather than inquisitorial. A claimant must plead and prove its allegations. The court should not routinely compel a defendant, on pain of imprisonment, to provide evidence unavailable to the claimant. No exceptional circumstances existed here, and no order was made.