Arcadia Group Ltd & Ors v Telegraph Media Group Ltd

A claimant who obtained an interim injunction requires the court’s permission to discontinue, but the discretion remains broad and principled. The court must consider all the circumstances, including conduct affecting the court’s process, prejudice, costs, and realistic procedural alternatives. It may impose conditions where necessary to undo advantages obtained or prevent abuse, but should not ordinarily decide hypothetical future claims or impose a blanket immunity on potential defendants. Any alleged abuse or re-litigation is generally better assessed when a defined claim is brought against an identified defendant. The ordinary costs consequence of discontinuance may be varied where exceptional circumstances make it unjust, including where third-party events have made the litigation pointless. Procedural confidentiality and restrictions on collateral use continue according to the Civil Procedure Rules 1998.

The claimants sought an injunction restraining publication of information concerning employment complaints and settlement agreements containing non-disclosure provisions. The Court of Appeal had granted an interim injunction and ordered an expedited trial: [2018] EWCA Civ 2329. After a parliamentary statement identified Sir Philip Green, the claimants decided to discontinue.

The claimants therefore sought permission to discontinue, continuation of confidentiality protections, and modified costs orders. The defendant opposed discontinuance unless conditions prevented specified future claims concerning publications and potential sources. The central issues were whether permission should be conditional, how confidentiality should be maintained, and how costs should be allocated.

1. Discontinuance. Permission was granted unconditionally. Under CPR 38.2(2)(a)(i), the court had to approve discontinuance because an interim injunction had been granted. The discretion was inherent and unfettered by any fixed test, but had to be exercised according to principle and with regard to all the circumstances. The claimant’s wish to end proceedings should generally be respected where there was no counterclaim.

2. The court could impose conditions where a claimant had obtained procedural advantages or where discontinuance would abuse the court’s process. However, there had been no trial and the judge had not seen the defendant’s evidence. It was therefore inappropriate to assume that the defendant would succeed or that discontinuance reflected a concession on the merits. The proposed restrictions were over-broad, uncertain, and risked barring contractual clawback claims whose enforceability had not been tested.

3. The principles summarised in Stati v Republic of Kazakhstan [2018] EWCA Civ 1896, adopting Singh v The Charity Commission [2016] EWHC B33 (Ch), were applied. Any future abuse or re-litigation argument could be determined in the context of a defined claim against an identified defendant. The discussion of Aldi Stores v WSP Group plc [2008] 1 WLR 748 did not justify advance control of all possible media-related claims.

4. Costs and confidentiality. The claimants recovered costs of the source-disclosure and most document-disclosure disputes. There was no order as to the interim-injunction costs, because exceptional third-party intervention had made continuation pointless and the court could not determine the likely trial outcome. The defendant’s costs were assessed on the standard basis up to 26 November 2018 and the indemnity basis thereafter. Confidentiality and collateral-use restrictions under CPR 32.12, CPR 31.22 and CPR 31.2 were continued.

• Court of Appeal: the first-instance refusal of interim relief was reversed and an interim injunction was granted pending an expedited trial: [2018] EWCA Civ 2329.
• High Court (Queen’s Bench Division): permission to discontinue was granted unconditionally, with ancillary confidentiality and costs orders.