Watson v Evershed LLP

Interim relief is ordinarily sought within issued proceedings, after service and on notice. An application before issue, or without notice, requires separate and substantial justification. The applicant must explain the absence of proceedings, establish sufficient urgency, and show that a properly issuable claim will promptly follow. A cross-undertaking in damages must also be addressed. The court may refuse the application without deciding whether there is a serious issue to be tried. A challenge alleging that a judgment was obtained by fraud will generally require a fresh action, while procedural complaints may be matters for appeal. An injunction against a solicitor may be misconceived where the judgment creditor can enforce the judgment independently.

Elizabeth Watson sought an interim injunction against Eversheds LLP and its agents before issuing or serving a claim. She alleged that Eversheds had procured a possession order by fraud and sought to restrain enforcement, together with protection from alleged harassment. The underlying possession order had been made by District Judge Dancey in favour of Bank of Scotland plc.

The application was made without notice, no claim form had been issued, no draft order was produced, and no cross-undertaking in damages had been addressed. During the hearing, the application was recast as a request for more time to appeal the possession order. The central issues were whether the court could entertain interim relief before proceedings and without notice, and whether the proposed complaints belonged in a fresh fraud action or an appeal.

1. Application dismissed. The application was totally without merit. No claim form had been issued, the proposed defendants had not been served or notified, and there was no proper basis for entertaining the application before issue.
2. The ordinary position is that interim remedies are granted within existing proceedings and after notice has been given to the person affected. Before granting relief before issue, the court must consider why proceedings have not been issued, whether an undertaking to issue and serve them can properly be accepted, whether there is sufficient urgency, and whether a claim capable of lawful issue is likely to be produced promptly. An application without notice requires substantial additional justification.
3. Those requirements were not met. The complaints had been known for a considerable time, there was no demonstrated urgency or secrecy, and the applicant had not addressed the cross-undertaking in damages. The court therefore did not reach the merits under American Cyanamid v Ethicon [1975] AC 396.
4. Following the approach indicated in Noble v Owens [2010] EWCA Civ 224, allegations that a judgment was obtained by fraud may require a fresh action in which the fraud can be proved. Procedural complaints may instead be matters for appeal, for which there is machinery to seek a stay. The applicant’s proposed grounds included both categories.
5. An injunction restraining Eversheds from enforcing the possession order appeared misconceived because the judgment stood in favour of the Bank, which could enforce it independently unless the Bank procured a breach of the injunction.
6. The court declined to extend time for an appeal. It indicated that the applicant could issue a notice of appeal and seek an extension or a stay from the County Court, but made no finding on the merits of the proposed grounds.