Dianne Levinson & Anor v Janis Franzer Cross & Ors

Interim relief requires more than a plausible claim. The applicant must identify a cause of action recognised by English law and show a case that is more than barely capable of serious argument. The possibility that early relief may shorten proceedings does not itself justify granting it. The applicant must establish why relief is required before trial and why ordinary procedures should not be followed.

In assessing the balance of convenience, the court must weigh the proposed interference with privacy and other protected interests against the practical value and reliability of the investigation. Equitable relief may also be refused for egregious misconduct having a sufficiently close connection with the relief sought. The clean hands question is fact-sensitive and requires a multi-factorial assessment.

The applicants were relatives of Muriel McKay, who had been kidnapped and murdered in 1969 and whose body had never been found. They sought interim orders preventing disturbance of the subsoil at garden premises in East London and authorising a non-invasive ground-penetrating radar survey.

The claim was based on alleged common-law rights and duties concerning the proper disposal and recovery of a deceased person’s remains. A previous company application for similar relief had been refused without notice for lack of standing. The Chief Master subsequently declared Muriel McKay presumptively dead and ordered limited letters of administration in favour of the applicants.

The issues were whether there was a serious issue to be tried, whether damages were inadequate, where the balance of convenience lay, and whether the applicants’ conduct justified refusal of equitable relief.

1. Application dismissed. The court refused both the prohibitory and mandatory interim injunctions.
2. The American Cyanamid principles applied. A serious issue required both a cause of action recognised by English law and sufficient factual arguability. The threshold was low, but the evidence that Muriel McKay’s remains were at the premises was very thin. The court nevertheless accepted, only for present purposes and without binding a future judge, that the applicants’ asserted rights and duties concerning possession and proper burial disclosed a recognisable cause of action and that ancillary interim powers were available.
3. Damages were not an adequate remedy. The balance of convenience nevertheless firmly favoured refusal. There was no established risk that the respondents or third parties would disturb the site, the police had declined to search it, and the survey might be inconclusive. The possibility that a survey could save costs or shorten the proceedings did not establish a need for pre-trial relief. Ordinary procedures would provide both sides with a fair opportunity to present and scrutinise their evidence.
4. The proposed survey would interfere materially with the respondents’ Article 8 rights to family life and privacy. That interference had to be assessed against the applicants’ weak evidence, the absence of urgency, and the recent conduct directed towards the respondents.
5. The court also held that the clean hands doctrine was engaged. Applying a multi-factorial assessment, the deception, dishonesty, bullying and harassment undertaken by the applicants or their associates had a direct connection with the relief sought. Refusal of relief would be proportionate, particularly given the difficulties with the claim and the possibility of seeking directions for a survey later.

This was a first-instance interim application. A previous company application for similar relief was refused without notice by Sir Anthony Mann on 25 September 2025 for lack of standing. On 11 November 2025, the Chief Master made an order declaring Muriel McKay presumptively dead and granting limited letters of administration to the applicants.