Cartus Corporation & Anor v Sidell & Anor

A court has a wide and flexible power to stay proceedings where a future dispute may arise and it would be convenient to preserve the existing action as its vehicle. A quia timet defamation claim cannot continue where there is no sufficiently certain threatened publication. Where relief is refused because the defendant’s position changes after an interim injunction was granted, that later change does not necessarily deprive the claimant of the costs of obtaining the injunction. Costs remain discretionary and must reflect both the outcome and the parties’ conduct.

The claimants sought continuation of a without notice injunction restraining publication of material said to be defamatory. Supperstone J had granted the injunction on 20 March 2014. Following a later judgment, the injunction was not continued because the defendants had not shown an intention to publish the identified material, or any other defamatory words with reasonable certainty.

This judgment dealt with the consequential orders. The issues were whether the action should be stayed or struck out, and how the costs of the various stages of the proceedings should be allocated.

1. Disposition. The application to continue the injunction was dismissed and the injunction granted by Supperstone J was discharged. The agreed ancillary applications were disposed of by consent or with no order.
2. Stay rather than strike out. Although the quia timet proceedings would fail in their existing form because no sufficiently certain threatened publication had been established, the defendants’ proposed amended defence indicated that some more limited publication remained contemplated. The court therefore stayed the action until further order, with liberty to apply. If no application was made to lift the stay within two years, the action should be struck out.
3. The power to stay proceedings is wide and flexible, as recognised in Rofa Sport Management AG v DHL International (UK) Ltd [1989] 1 WLR 902. Preserving the action was convenient because any future publication might give rise to further proceedings on a related subject.
4. Costs. The claimants were to recover 50 per cent of their costs, subject to detailed assessment on the standard basis. The defendants’ later clarification of their intentions was the principal reason for the defendants’ success, but the claimants were entitled to costs incurred in obtaining the original injunction because the refusal of continuing relief resulted from subsequent developments. The proportion was reduced to reflect errors in the without notice application and the excessive breadth and lack of territorial limitation of the injunction.
5. There was no order as to costs for the applications before Sir David Eady. The claimants were to bear their own costs of redacting the filed copy of “The Ugly Truth” and pay any consequential costs incurred by the defendants.

This was a first-instance decision on consequential orders following the court’s earlier judgment refusing continuation of the injunction. The judgment does not state any appellate history.