THANDI v SAGGU

On an application for an interim mandatory injunction, the court must assess whether there is a serious issue to be tried, whether damages would be an adequate remedy, and where the balance of convenience lies. The overriding consideration is the course presenting the least risk of injustice if the order proves wrong.

A mandatory order carries particular risk because it changes the status quo. A high degree of assurance that the claimant will succeed at trial is relevant, but is not an absolute requirement. The injunction may still be granted where the risk of injustice from refusal sufficiently outweighs the risk from granting it. Appropriate undertakings may materially reduce the risk to the respondent.

Mrs Thandi sought an interim mandatory injunction requiring removal of a unilateral notice entered by Mr Saggu on the register relating to a commercial property. The notice was said to protect an alleged contract for sale of the property arising from three letters exchanged in 2018.

Mrs Thandi challenged the alleged contract on grounds including undue influence, non-compliance with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, and rescission by mutual consent. She sought removal of the notice so that proposed commercial finance could proceed and prevent possible repossession of her home. Mr Saggu maintained that he had a binding contract and might seek specific performance.

The central issue was whether the injunction should be granted pending trial.

1. Order granted. The court granted the interim mandatory injunction requiring removal of the unilateral notice, with liberty to apply. The order was made subject to the undertakings offered by Mrs Thandi, including undertakings concerning disposal and further borrowing affecting the properties and, if specific performance were ultimately ordered, redemption of the proposed lender’s charge.
2. The court applied the three questions identified in American Cyanamid Co (No 1) v Ethicon Limited [1975] 1 AER 504: whether there was a serious issue to be tried, whether damages were an adequate remedy, and where the balance of convenience lay. There was a serious issue because the alleged contract and the claimant’s challenges could not fairly be resolved on the evidence at an interlocutory hearing.
3. For an interim mandatory injunction, the overriding consideration was the course involving the least risk of injustice if the order proved wrong. A mandatory order generally carries greater risk because it changes the status quo. A high degree of assurance that the claimant would succeed at trial was relevant, but the injunction could still be granted where the risk of injustice from refusal sufficiently outweighed the risk from granting it. These principles reflected Nottingham Building Society v Eurodynamics Systems [1993] FSR 468.
4. Damages were treated as potentially inadequate for both parties. Mrs Thandi might lose the value associated with her home if the notice remained and the property were repossessed. Mr Saggu’s primary asserted remedy was specific performance of a land sale contract, for which damages would not adequately vindicate the proprietary interest he claimed.
5. The merits contained substantial issues on both sides and were not determinative at this stage. The decisive consideration was practical fairness. There was a material risk of needless repossession if the notice remained. Conversely, Mr Saggu’s position could be protected by the undertakings, available equity, and the proposed obligation to redeem the finance or sell the home if specific performance were ordered. The risk of injustice from refusing relief therefore outweighed the risk from granting it.