K & Ors, R (On the Application Of) v Secretary of State for Defence & Ors

An interim mandatory injunction will not be granted where the underlying public law claim has no real prospect of success. The court must assess the prospects of success, the adequacy of damages and the balance of the risk of injustice. The heightened caution applicable to mandatory relief is a guideline, not an independent test. Interim relief should not confer a greater benefit than could be obtained at trial. Policies for overt employees do not ordinarily extend to covert intelligence sources merely because both may face reprisals. The Convention’s territorial jurisdiction requires a sufficient relationship of control and authority; covert dealings with foreign-based sources did not establish that relationship.

Three anonymous claimants alleged that they had supplied intelligence to British Forces in Afghanistan and faced reprisals from the Taleban. They sought urgent interim relief requiring the defendants to provide secure accommodation in Afghanistan and associated living expenses pending determination of their judicial review and private law claims.

The public law claims relied on government policies for locally employed staff and on articles 2, 3 and 8 of the European Convention on Human Rights. The private law claims alleged employment or service contracts, implied protective terms, negligence and misrepresentation. The central issues were whether there was a serious question to be tried and whether interim mandatory relief was justified.

1. Application refused. The claimants did not establish a real prospect of succeeding at trial, and interim relief was therefore inappropriate.
2. Section 21 of the Crown Proceedings Act 1947 generally prohibited injunctions against the Crown in civil proceedings. Following M v Home Office [1994] 1 A.C. 377, injunctive relief was available against the Crown and ministers in judicial review proceedings. The private law claims could not support the order sought, which was in substance an interim payment.
3. Under CPR 25.6 and 25.7, an interim payment required an admission of liability, judgment, or a sufficient prospect that the claimants would obtain judgment for a substantial sum. None of those conditions was satisfied. The alleged employment relationship also appeared very difficult to establish, and the territorial reach of the Misrepresentation Act 1967 was doubtful.
4. The employment and intimidation policies were directed to persons in overt employment with the British authorities who were, in ordinary language, on the books. Covert intelligence sources were materially different from locally employed staff. They were not comparable for the purpose of an argument that like cases had been treated differently. Whether to establish a separate policy for covert sources was a matter of political judgment on which the court would be slow to dictate an outcome.
5. The Convention claim was unarguable on the material before the court. The claimants were in Afghanistan, outside areas under the effective control of British Forces, and the alleged relationship did not involve the control and authority required for British jurisdiction. Their position was not analogous to that of serving members of the Armed Forces in Smith v Ministry of Defence [2013] UKSC 41, nor did Al Skeini v United Kingdom (2011) 53 EHRR 18 assist them.
6. The approach in Nottingham Building Society v Eurodynamics Systems [1993] FSR 468, drawing on Films Rover Ltd v Canon Film Sales Ltd [1987] 1 WLR 670 and Shepherd Homes Ltd v Sandham [1971] Ch 351, required the court to choose the course carrying the lower risk of injustice. The high degree of assurance commonly required for mandatory relief was a guideline. Even assuming an arguable claim, the claimants had already moved away from the locations in which they feared reprisals, so the balance of risk did not favour an injunction.