Michael James Allen v Douglas Graham Alexander Stuart & Anor

A penal notice is a warning added to an order. Following the relevant amendments to Civil Procedure Rules 1998, it is not part of the order itself. A party may therefore request its inclusion even if it was not expressly sought in the application. The court should refuse that request only where a principled reason exists. The speed with which undertakings were offered, or the reasons for offering them, does not alter the consequences of breach. Including a penal notice may clarify those consequences and avoid later disputes if contempt proceedings are required.

The claimant applied for an interim injunction restraining the defendants from threatening or harassing him or those assisting him in using a site, including in connection with enforcement of a notice under Tort (Interference with Goods Act) 1977, section 12. The parties instead agreed undertakings in equivalent terms. The remaining dispute concerned whether the sealed order recording the undertakings should contain a penal notice.

The defendants relied on In re Taray Brokering Limited, also cited as Avery-Gee (as trustee in bankruptcy of Lawrence Coppen) v Coppen and Anor, and argued that no penal notice should be included because it had not been expressly requested in the application.

1. The court granted the claimant’s request that the sealed order include a penal notice and invited the parties to submit an agreed final draft order.

2. Taray Brokering concerned the addition of a penal notice after an order had been made and served. HHJ Pearce held that a party could not add such a notice unilaterally and had to apply to vary the order.

3. That reasoning did not support refusing the present request. The Civil Procedure (Amendment) Rules 2004 amended CPR 81.2 and CPR 81.4(e). The amendment made clear that a penal notice is a warning added to the order as necessary, rather than part of the order itself. The court therefore rejected the defendants’ reliance on Taray Brokering as establishing that an express request in the original application was required.

4. No principled reason had been advanced for refusing inclusion. The notice merely records the consequences of breach of the undertakings and may avoid disputes if contempt proceedings become necessary. The fact that the undertakings were offered within hours of the application, or because the defendants did not intend to repeat the alleged conduct, did not alter the consequences of breach.