Monty & Payter LLP v MWA Projects Limited

An interim injunction before proceedings requires urgency or that the order is desirable in the interests of justice under CPR 25.2(1). The court applies the familiar three-stage inquiry: whether there is a serious issue to be tried, whether damages would be an adequate remedy, and, if not, where the balance of convenience lies. For a mandatory injunction, the court adopts the course carrying the lower risk of injustice if its decision proves wrong. Contractual access rights must be read with the contractor’s possession and health and safety duties. A prior indulgence does not necessarily establish a contractual entitlement. Where the claimant identifies no non-financial or irreparable prejudice, and unrestricted access would create significant health and safety risks, injunctive relief should be refused. The absence of an undertaking in damages may independently justify refusal.

Monty & Payter LLP, the employer under a building contract, sought an interim mandatory injunction against MWA Projects Limited, its principal contractor and principal designer. The proposed order would have prevented changes to site access and health and safety arrangements without prior notice, an opportunity to make representations and a reasoned response.

The practical objective was to secure unrestricted access to the site for the employer’s contract administrator, including outside normal working hours and without MWA’s representative present. MWA relied on its contractual possession of the site and its health and safety responsibilities. The court determined whether the application satisfied the requirements for pre-action interim relief and the principles governing interim injunctions.

1. Application dismissed. The application was neither urgent nor desirable in the interests of justice within CPR 25.2(1).
2. Applying American Cyanamid v Ethicon Limited [1975] AC 396, there was no serious issue to be tried. The building contract gave the Contract Administrator access to the works at all reasonable times, but did not confer a right to attend whenever personally convenient. MWA retained exclusive possession and had provided access consistent with the contract. A previous period of greater practical access did not create an arguable breach when that indulgence was withdrawn.
3. In any event, damages would have been an adequate remedy. The alleged loss was financial, there was no evidence that the Contract Administrator’s functions or MWA’s works had been impeded, and MWA was able to meet any award. The application also lacked genuine urgency.
4. The balance of convenience favoured refusal. For a mandatory injunction, the relevant course was the one carrying the lower risk of injustice if wrong. The contractual arrangement permitting access at reasonable times and by arrangement protected the employer’s legitimate functions, while unrestricted access would create materially greater health and safety risks in light of MWA’s duties under s.3 of the Health and Safety at Work Act 1974 and Regulation 13 of the CDM Regulations 2015.
5. The absence of any undertaking in damages was an additional and independently sufficient reason to refuse relief, given the serious doubt about the claimant’s ability to compensate MWA if an injunction were wrongly granted.
6. MWA was awarded indemnity costs of £57,518, payable within fourteen days.