Domestic & General Group Ltd & Ors v Premier Protect Holdings Ltd & Ors

For an interim injunction, the court applies the American Cyanamid questions: whether there is a serious issue to be tried, whether damages are adequate, and where the balance of convenience lies. Pre-action disclosure is appropriate where the documents are carefully defined, probably fall within standard disclosure, and the substantive claim has a real prospect of success. It is not a fishing expedition where existing evidence already supports the claim and the requested material would strengthen or focus it. Permission to serve out requires a real prospect of success, a good arguable case within a jurisdictional gateway, and England and Wales to be the appropriate forum. Alternative service may be authorised despite practical difficulty where reasonable steps have been taken.

The applicants, companies in the Domestic & General Group, alleged that the respondents had used fraudulent misrepresentations in unsolicited calls to induce customers to purchase appliance protection plans. They sought an interim injunction, preservation of evidence, specific disclosure, permission to serve three respondents outside the jurisdiction, and alternative service on one respondent.

The application was heard on an interim and partly ex parte basis. The court considered the alleged economic torts, the principles governing pre-action disclosure, the jurisdictional gateways for service out, the appropriate forum, and alternative service.

1. Interim injunction. The court applied the American Cyanamid test. There was a serious issue to be tried and a clear prima facie case that the first to fourth respondents were connected with fraudulent misrepresentations. Damages were inadequate because reputational harm might be irrevocable and loss difficult to assess. The balance of convenience favoured restraint from making the alleged false representations. The injunction was granted, subject to agreed amendments to its wording.
2. Preservation of evidence. Preservation orders were made against the first to fifth respondents. The risk of concealment was inherent in the nature of the alleged fraudulent conduct. The order against the fifth respondent was justified by historic calls made on its behalf.
3. Specific disclosure. The relevant principles required the request to be carefully circumscribed, strictly necessary, probably within standard disclosure, and supported by a properly arguable claim with a real prospect of success. The requested call recordings and training materials would assist in pleading the alleged misrepresentations and conspiracy. Existing ChitChat evidence meant that the application was supportive of an existing case, rather than a fishing expedition. Disclosure was ordered.
4. Service out. The claim against the sixth to eighth respondents had a real prospect of success. The gateways in Practice Direction 3B, paragraphs 3.1.9(a) and 3.1.3, were satisfied. England and Wales was the appropriate forum because the principal respondents and customers were here and the alleged loss was sustained here.
5. Permission was granted for alternative service on the eighth respondent. The applicants remained subject to the duty of full and frank disclosure arising from the ex parte application. A return date was fixed five weeks later.