Sanjar Mohammed Rasul & Anor v Franco Lumba

An enforcement liberty in an interim order permits the court to hold parties to the order’s terms. It may include requiring the return of keys where possession was expressly conditional on compliance with undertakings. It does not ordinarily authorise a freestanding variation application based only on changed circumstances. On an interlocutory application, serious alleged breaches require sufficiently specific evidence before a mandatory injunction effectively determining part of the substantive claim is granted. The court should consider whether inspection, remedial work or a further application with better evidence provides a proportionate alternative.

The defendant landlord applied in relation to an interim order made after he had forfeited a commercial lease. The order required him to provide keys to the first claimant, subject to undertakings, and allowed the second claimant to resume its garage business. It also permitted the parties to apply to enforce the order, while transferring further proceedings to the County Court dealing with the forfeiture claim.

The landlord relied on an emergency prohibition order concerning residential use, fire and electrical hazards at a flat forming part of the premises. He sought discharge of the order’s key provision and permission to re-enter. The claimants disputed breach, jurisdiction and the evidence. The central issues were the construction of the liberty to apply, the scope of the court’s variation jurisdiction, and whether the evidence justified the relief sought.

1. Application dismissed. The court declined to discharge paragraph 1 of the interim order or permit the landlord’s re-entry.
2. The words permitting the parties to apply “to enforce the terms” meant applications to hold the parties to the order. They preserved High Court enforcement jurisdiction despite transferring further proceedings to the County Court. Because the claimant’s possession of the keys was expressly made subject to compliance with his undertakings, enforcement could include an order requiring their return if those undertakings had been breached. The court retained discretion: a minor breach would not automatically require return of the keys.
3. A freestanding application to vary the order because of changed circumstances did not fall within that enforcement liberty. Although CPR rule 3.1(7) permits variation of an order, the order did not retain a general High Court variation jurisdiction except as part of enforcement. In any event, the facts did not justify discharge.
4. The evidence raised serious concerns about possible residential use and hazards, and justified an urgent inspection. It did not establish with sufficient certainty the specific breaches, their timing or their seriousness. The emergency prohibition order prohibited residential and sleeping use; it did not itself impose an obligation to carry out the remedial works identified in it.
5. The proposed relief was mandatory and might effectively dispose of the claim to be restored to the premises. Applying the American Cyanamid principles, there was a serious issue to be tried, but the balance of convenience favoured inspection, clarification of the alleged breaches and remedial action before any return to court.
6. The claimants were required to permit inspection on reasonable notice. One day’s notice was accepted as reasonable. Access could be required for all relevant parts of the property and to authorised professionals. If specific serious breaches were established, the landlord could restore the matter and seek discharge of paragraph 1.