Birmingham City Council v Afsar & Ors

An applicant for an injunction is ordinarily required to give an undertaking in damages. The applicant bears the burden of showing why that protection should be withheld. There is no equivalent presumption for third parties, but an undertaking will ordinarily be required where Convention rights are affected. Public authorities may be required to give undertakings, although the decision is discretionary and depends on the circumstances. Relevant considerations include statutory duties, available resources, alternative actors, the public interest, and the general absence of compensation for loss caused by administrative action. The court should also consider the nature of the undertaking and the likely loss. The usual undertaking was appropriate where a public authority sought an injunction principally to restrain allegedly harassing speech.

The Council obtained injunctions against the defendants in earlier proceedings concerning alleged anti-social behaviour and speech connected with protests at a school. The injunctions interfered with the defendants’ Convention rights. Following the earlier judgment, the remaining issue was whether the Council should provide undertakings in damages, including in relation to defendants and third parties. The issue was resolved on written submissions.

1. The Council was required to give undertakings in damages in the usual form. It undertook to comply with any later order compensating a defendant or third party for loss caused by the injunctions.
2. The ordinary rule in civil litigation is that an injunction applicant gives an undertaking in damages, subject to the court ordering otherwise under CPR PD 25A para 5.1(1). The burden therefore lies on an applicant seeking exemption.
3. There is no equivalent presumption for third parties. The court must decide whether an undertaking is appropriate under CPR PD 25A para 5.3. In litigation affecting Article 10 rights, the usual position is to require one.
4. The former rule that the Crown could not be required to give an undertaking no longer applied. Local and central government bodies may be required to do so, but the decision is discretionary. The court must consider what is fair in the particular circumstances, having regard to Hoffman-La Roche v Secretary of State for Trade and Industry [1975] AC 295, Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227 and Financial Services Authority v Sinaloa Gold Plc [2013] UKSC 11.
5. Relevant factors included whether the authority was acting under a statutory duty, its limited resources, whether another person could act instead, and the risk of deterring public authorities from acting in the public interest. The court also had to consider that English law generally provides no remedy for loss caused by administrative action, subject to recognised exceptions including misfeasance in public office and breaches of Convention rights within s 6(1) of the HRA.
6. The Council’s claim was principally directed at harassment affecting teachers, staff and pupils, rather than the public at large. Individuals could in principle have brought private actions and would have been required to give undertakings. The Council’s public status did not justify withholding equivalent protection. The likely financial burden was modest, making the undertaking a proportionate safeguard.

The judgment followed an earlier reserved judgment in the same proceedings, reported at [2019] EWHC 1560 (QB). The remaining issue was determined by Mr Justice Warby at first instance.