Guido de Sanctis v Dr Francesca Romana Bottari

On an application for an interim injunction, the court must determine whether there is a serious issue to be tried, whether damages are an adequate remedy and where the balance of convenience lies. The court should not conduct a mini-trial or resolve difficult legal questions requiring detailed argument. A pleaded and evidenced case is ordinarily taken at face value unless plainly false or fanciful. Where enforcement may deprive a disabled applicant of her home and place of work, damages may be inadequate. A short restraint on enforcement may therefore be justified where the opposing party’s loss can be compensated and the underlying challenge has a real prospect of success.

The Applicant sought an interim prohibitory injunction restraining the Respondent from enforcing an order requiring her to give up possession of her home. The order followed registration in England of a judgment of the Rome Court of Appeal and a charging order over the Property.

The Applicant’s challenge to the Italian judgment had been dismissed by the Court of Cassation, but she had commenced a further revocation procedure. She relied on an Italian lawyer’s report assessing that procedure as having merit and a potential for success. The injunction was sought pending determination of her separate application for a stay of execution under the Civil Procedure Rules 1998 and the Judgments Regulation.

1. Application granted. The court granted an interim prohibitory injunction restraining enforcement of the possession order pending determination of the stay application, subject to an undertaking in damages supported by a payment into court of £5,000.
2. Applying American Cyanamid v Ethicon [1975] A.C. 396, the relevant questions were whether there was a serious issue to be tried, whether damages would be an adequate remedy and where the balance of convenience lay. The threshold did not require a probability of success. It was enough that the claim was not frivolous or vexatious and had a real prospect of success (paras [27], [36]-[37]).
3. The court should not resolve conflicts of evidence or difficult questions of law on an interim application. It should not conduct a mini-trial. The Applicant’s case and evidence were to be taken at face value unless plainly false or fanciful, although the strength of the case could be weighed when assessing the balance of convenience (para [28]).
4. The Applicant had a real prospect of establishing that the stay application should succeed. The Italian lawyer’s report was thorough, appeared independent and objective, and identified a potentially material change since the earlier order. The revocation hearing had taken place and its outcome was expected within 60 to 90 days (paras [37]-[41]).
5. The terms of the earlier order were significant. Its express liberty to apply permitted an application to vary any term, and the order for sale had been recognised as discretionary and draconian. There was a serious issue as to whether enforcement should be stayed for the limited period until the Italian proceedings were resolved (para [42]).
6. Whether the Italian procedural rule against suspending enforcement pending a revocation application prevented an English court from granting a stay was a difficult question of law requiring detailed argument. It was therefore inappropriate to determine it on the interim application (para [44]).
7. Damages were inadequate for the Applicant because enforcement risked the loss of her home and place of work. The Respondent’s loss from a short injunction, principally possible lost interest, was modest and compensable. The balance of convenience consequently favoured the Applicant (paras [50]-[56]).