Section 51 Costs Jurisdiction Injunction Without Claim Form

Court Of Appeal Confirms That Pre-Action Applications Constitute 'Proceedings' for Costs Purposes"

Courts retain costs jurisdiction over all pre-action applications even where no claim form follows. Any application constitutes “proceedings” under section 51 Senior Courts Act 1981, regardless of procedural defects. Applicants cannot escape costs liability by exploiting their own errors in form or process.

GOTTI V PERRETT [2025] EWCA Civ 1168

In Gotti v Perrett, the Court of Appeal addressed whether courts retain jurisdiction to make costs and damages orders when discharging interim injunctions obtained without subsequent claim forms. The appellant secured an interim injunction using Form N16A without providing required undertakings or issuing a Part 8 claim form. When the respondent sought discharge with costs and damages seven months later, the appellant conceded his application was “deeply misconceived” but argued no “proceedings” existed to ground costs jurisdiction. The Court held that pre-action injunction applications constitute “proceedings” under section 51 Senior Courts Act 1981 and section 38 County Courts Act 1984, regardless of procedural defects. The appellant’s concession that the court had jurisdiction to both grant and discharge the injunction was fatal to his argument that no proceedings existed. The Court confirmed that interim injunctions have immediate effect requiring costs protection for respondents, and that CPR r.3.10 could remedy using the wrong form. The appeal was dismissed, upholding the lower courts’ jurisdiction to award costs and damages.

Section 51 SCA 1981 establishes that the 'costs of and incidental to all proceedings in... the county court, shall be in the discretion of the court'. The word 'proceedings' in this context must be given the same wide interpretation as discussed above; it is of course well-recognised that orders for costs are made in relation to pre-claim applications for injunctions under this head

Citations

Fraser v Evans [1969] 1 QB 349 An interim injunction is not available in defamation where the defendant advances a defence of justification, as prior restraint is contrary to the principles of freedom of expression. Lawal v Adeyinka [2021] EWHC 2486 (QB) Jurisdiction under section 3 of the Protection from Harassment Act 1997 is limited to England and Wales, and claimants residing outside the jurisdiction cannot invoke the provision in the County Court. Cream Holdings Ltd v Banerjee [2004] UKHL 44; [2005] 1 AC 253 Where interim relief may affect freedom of expression, the court must be satisfied that the applicant is likely to establish that publication should not be allowed before granting relief. Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003 When granting interim relief that restricts publication, courts must consider the necessity and proportionality of interference with Article 10 ECHR rights. Hannigan v Hannigan [2000] EWCA Civ 159 Where proceedings are commenced in the incorrect procedural form but contain sufficient information, CPR r.3.10 permits correction without invalidating the claim, enabling the court to do justice and avoid technical injustice in costs determinations. Barton v Wright Hassall LLP [2018] 1 WLR 1119 For costs and limitation purposes, proceedings are started only when a compliant claim form is issued, which marks the beginning of the court’s jurisdiction over the defendant. Citation plc v Ellis [2012] EWHC 764 (QB) Where no claim form is issued, there are no proceedings and thus no recoverable litigation costs; the court cannot award costs arising purely from pre-action conduct. Webb Resolutions Ltd v Countrywide Surveyors Ltd (Unreported, 4 May 2016) There is no jurisdiction to award litigation costs unless a claim form has been issued and served, underscoring the procedural requirement to initiate formal proceedings. Stubbins Marketing Ltd v Difrancesco [2023] EWHC 515 (Ch) A valid claim form must be issued to activate the court’s jurisdiction and allow for consequential orders including the award of costs. Peterson v Howard de Walden Estates Ltd [2023] EWHC 929 (Ch) CPR r.3.10 does not permit remedying procedural errors that occur before proceedings are commenced, such as failure to pay issue fees; the rule applies only after litigation has started. Reddy v General Medical Council [2012] EWCA Civ 310 An appeal commenced on the wrong form but containing all necessary information can be treated as a procedural error under CPR r.3.10, allowing the court to validate the document for costs and jurisdictional purposes. Steele v Mooney [2005] 1 WLR 2819 Procedural errors under CPR r.3.10 are not limited to failures to comply with rules or directions but encompass all procedural irregularities that may be corrected to ensure fair and just outcomes, including the award of costs. Fourie v Le Roux [2007] UKHL 1; [2007] 1 WLR 320 The court’s equitable jurisdiction to grant interim relief, such as injunctions, exists independently of whether a cause of action has yet been formally issued, thereby enabling ancillary cost orders. Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47; [2024] AC 983 It is well established that injunctive relief can be granted without a concurrent cause of action, allowing the court to exercise jurisdiction over subsequent costs and ancillary matters. Gray v UVW [2010] EWHC 2367 (QB) Where a party obtains an interim injunction without issuing a claim form as required, the court must investigate and apply sanctions where appropriate, including costs orders in favour of the respondent. Plevin v Paragon Personal Finance Ltd [2017] UKSC 23; [2017] 1 WLR 1249 The term “proceedings” is context-dependent and interpreted in light of the statutory purpose, permitting a broader reading where necessary to support the award of costs for interlocutory applications. Vinos v Marks & Spencer Plc [2001] 3 All ER 784 CPR r.3.10 cannot cure procedural defects that the rules prohibit expressly; however, where such prohibition does not exist, the rule can be used to regularise procedural errors impacting cost liability.

FERNANDEZ V FERNANDEZ [2025] EWHC 2373 (Ch)

Section 51 Costs Jurisdiction Injunction Without Claim Form | Gotti

Being 'Annoying and Difficult' Not Sufficiently 'Out Of The Norm' For Indemnity Costs In Failed Liquidator Challenge

STOCKLER AND ANOTHER V THE CORPORATION OF THE HALL OF ARTS AND SCIENCES [2025] EWHC 2262 (SCCO)

Key Points

A pre-action application for an interim injunction, validly issued by the court under the Civil Procedure Rules, constitutes “proceedings” for the purposes of the court’s jurisdiction, including its power to award costs, even where no substantive claim form is ever issued. [70, 89]
The court’s power to award costs under section 51 of the Senior Courts Act 1981 extends to all proceedings in the county court, including pre-claim applications for interim relief. [36–37, 39–40, 62–63, 73–74]
The absence of a substantive claim form does not prevent the court from exercising its discretion to award costs where the court has been seised of an application and has made orders affecting a party’s legal position. [29–31, 38, 41, 64–70]
The Civil Procedure Rules, including the overriding objective and provisions governing costs, apply to interim applications made before a claim form is issued, and these rules empower the court to determine related ancillary matters such as costs. [37–41, 67–70, 75]
As an alternative basis for jurisdiction, CPR rule 3.10 may be invoked to cure the procedural error of using an incorrect form for an application, allowing the court to treat the application as a valid originating process for the purpose of making consequential orders, including costs. [80, 88]

"The fallacy of Mr Hirst's submissions were ultimately exposed in my judgment by the concession appearing in his written argument to this court, namely that the court below 'had the power to make the interim injunction on 4 Aug 2023 and had, as a corollary, a jurisdiction to discharge it on 29 March 2024'."

Key Findings In The Case

The interim injunction granted on 3 August 2023 was validly issued under the Civil Procedure Rules despite no claim form ever being filed, and therefore constituted “proceedings” within which costs jurisdiction could be exercised in favour of the Respondent when the injunction was discharged [29–31, 64–65].
The power to award costs under section 51 of the Senior Courts Act 1981 was properly engaged because the application for injunctive relief constituted “proceedings” that had legal consequences for the Respondent, including compliance obligations and exposure to enforcement threats [37, 39–40, 73].
The Respondent was entitled to seek a costs order in her favour arising from the discharge of the injunction, even in the absence of a claim form, as the application initiated formal steps within the court’s jurisdiction resulting in adverse effects on her, including loss of income and legal costs [28, 30–31, 64–70].
The Claimant’s failure to issue a claim form, after representing that he would do so, did not preclude the court from awarding costs to the Respondent, as the CPR still applied to the proceedings from the point of issue and service of the injunction application on form N16A [20, 24–26, 30–31, 64–70, 72].
The error in using form N16A instead of form N208 could be remedied under CPR r.3.10, enabling the court to treat the application as a valid originating process and thereby permitting a costs order to be made in the Respondent’s favour within properly constituted proceedings [42–45, 80–88].

"The court's jurisdiction (i.e., 'in the strict sense' per Lord Scott in Fourie v Le Roux at [30]) to make orders within these proceedings exists whether the proceedings are meritorious, unmeritorious, or (as in this case) deeply misconceived; the strength, or otherwise, of the application emerges only later."

The Court of Appeal’s decision in Gotti v Perrett [2025] EWCA Civ 1168 establishes that all pre-action applications constitute “proceedings” for costs purposes, closing a potential loophole across civil litigation.

Background

The dispute originated from an application for an interim injunction made by the Appellant, Christian Gotti, against the Respondent, Karen Perrett, under the Protection from Harassment Act 1997. The application was issued at Worcester County Court on 4 July 2023 using Form N16A, the general application form for an injunction under CPR Part 23. The application was listed for a contested hearing on 3 August 2023, where the Appellant was represented by counsel and the Respondent appeared in person. Following the hearing, an interim injunction was granted.

The injunction order contained significant procedural defects. No undertaking was given by the Appellant to issue a claim form, as required by the then-in-force CPR PD25A, paragraph 4.4(1). The court also failed to give directions for the issue of a claim form. Furthermore, no cross-undertaking in damages was offered by the Appellant or recorded in the order, despite the Respondent’s evidence that she would suffer financial loss. A penal notice was included on the face of the order. No claim form was ever issued by the Appellant.

The application was later acknowledged by the Appellant himself to be “deeply misconceived” [§20, §26] for multiple reasons: the county court lacked jurisdiction for defamation claims; interim injunctions are unavailable in defamation where the defendant seeks to defend; the PfHA 1997 lacked jurisdiction as the Appellant lived in Scotland; and Article 10 ECHR issues were not addressed.

On 27 February 2024, the Respondent issued an application to discharge the injunction and for damages and costs. Upon receipt of this application, the Appellant performed what the Court described as a “spectacular volte face” [§25], conceded that his application for the injunction was “deeply misconceived” and accepted that the order should never have been granted. He consented to its immediate discharge. However, he argued that as no Part 7 or Part 8 claim form had ever been issued, there were no valid “proceedings” before the court. Consequently, he contended that the court had no jurisdiction to make orders for costs or damages in favour of the Respondent.

Costs Issues Before the Court

The central costs issue was whether the court possessed the jurisdiction to make ancillary orders for costs and damages upon the discharge of an injunction where: (i) no undertaking to issue a claim form was given or recorded; (ii) no cross-undertaking in damages was offered or recorded; and (iii) no claim form was ever subsequently issued. The Appellant’s position was that the absence of a substantive claim form meant the injunction application was a “nullity” and that no “proceedings” existed in which the court could exercise its powers.

A secondary issue was whether, if the court found there were no valid proceedings, it could invoke CPR rule 3.10 to remedy the procedural error of using Form N16A instead of the required Part 8 Claim Form (N208) for a claim under the Protection from Harassment Act 1997.

The Parties’ Positions

The Appellant’s Position: The Appellant argued that the court had no jurisdiction. He submitted that “proceedings” are started only when the court issues a claim form at the request of a claimant, pursuant to CPR rule 7.2(1). As no Part 7 or Part 8 claim form was ever issued, there were no proceedings. He contended that the use of Form N16A did not constitute a prescribed originating process for this type of claim and that the entire process was therefore a nullity. He relied on authorities such as Citation plc v Ellis and Peterson v Howard de Walden Estates Ltd to support the proposition that costs cannot be awarded without a claim form. He further argued that CPR rule 3.10 could not be used to correct a procedural error that occurred before the commencement of any proceedings.

The Respondent’s Position: The Respondent argued that the court did have jurisdiction. She contended that the application for an interim injunction, properly issued under CPR Parts 23 and 25, constituted “proceedings” to which the Civil Procedure Rules applied. She relied on the equitable jurisdiction of the court to grant injunctions, as confirmed in Fourie v Le Roux, and the wide interpretation of “proceedings” in section 147 of the County Courts Act 1984, which “includes both actions and matters.” She also pointed to the court’s costs jurisdiction under section 51 of the Senior Courts Act 1981, which applies to “costs of and incidental to all proceedings.” In the alternative, she argued that the error in using the wrong form could and should be remedied under CPR rule 3.10, citing authorities such as Hannigan v Hannigan and Reddy v General Medical Council.

The Court’s Decision

The Court of Appeal dismissed the appeal, upholding the decisions of the courts below. Both Lewison LJ (in granting permission) and HHJ Salmon described the Appellant’s argument as “an affront to common sense” [§5-6]. Lord Justice Cobb, giving the lead judgment, held that the application for an interim injunction constituted “proceedings” within the meaning of the relevant statutes and rules. The court’s reasoning was based on several key points.

- First, the court was exercising a statutory and equitable jurisdiction under section 38 of the County Courts Act 1984 when it granted the injunction. This power exists in “any proceedings,” a term which is not restricted to post-claim-form activity. The court endorsed the view that “proceedings” include any application with which the court is seised and in respect of which it is asked to make orders. The fact that the application was procedurally flawed and “deeply misconceived” did not mean it was a nullity; it simply meant the proceedings were brought in an inappropriate form.
- Second, the court’s costs jurisdiction under section 51 of the Senior Courts Act 1981 applies to “all proceedings,” which must be given the same wide interpretation. Civil courts routinely make costs orders on pre-action interim injunction applications.
- Third, disapplying the CPR and the overriding objective to a pre-action injunction application would be absurd, as such applications can have draconian consequences for respondents and must be dealt with justly. The Appellant’s concession that the court had jurisdiction to make and subsequently discharge the injunction was found to be inconsistent with his argument that the process was a nullity.

The court relied heavily on Lord Scott’s judgment in Fourie v Le Roux [2007] UKHL 1, which established that pre-action freezing orders are “not a nullity” and have “immediate effect” even without substantive proceedings [§58].

On the secondary issue, the court held that, if necessary, CPR rule 3.10 could be invoked to remedy the error of using Form N16A instead of Form N208. The error was one of procedure after proceedings had commenced, and it could be corrected to prevent the Appellant from benefiting from his own failure and to further the overriding objective. The case of Peterson was distinguished, as it concerned an error occurring before any proceedings were commenced.

In conclusion, the court found that the judges below were correct. The court had jurisdiction to make orders ancillary to the discharge of the injunction, including orders for costs and damages. The appeal was dismissed.

Wider implications beyond injunctions for costs jurisdiction in civil litigation

1. Pre-action applications generally The principle that “proceedings” under s.51 SCA 1981 encompasses any application where the court is asked to exercise jurisdiction extends to all pre-action remedies, not just injunctions. This would cover:

- Pre-action disclosure applications (CPR r.31.16)
- Norwich Pharmacal orders
- Pre-action inspection orders
- Any application under CPR Part 23 before a claim form

2. Procedurally defective proceedings The ruling that procedural errors don’t negate costs jurisdiction applies broadly. If parties commence any type of application using the wrong form or procedure, they cannot later rely on their own error to escape costs consequences. This prevents tactical exploitation of procedural mistakes across all litigation contexts.

3. Defining “proceedings” for costs purposes The Court’s expansive interpretation of “proceedings” – as any matter where the court is “seised” and asked to make orders [§69] – affects costs jurisdiction throughout the CPR. This could impact:

- Costs in struck-out claims
- Discontinued proceedings
- Applications dismissed for procedural non-compliance
- Stand-alone applications without underlying claims

4. CPR r.3.10 application The liberal approach to remedying procedural errors under CPR r.3.10 has implications for all litigation where the wrong form or process is used, confirming courts will prevent parties benefiting from their own procedural failures.

5. Section 51 jurisdiction The confirmation that s.51 SCA 1981 costs jurisdiction applies to “all proceedings” reinforces the court’s broad discretion over costs in any matter before it, strengthening the principle that costs follow the event regardless of procedural irregularities.

This decision essentially closes a potential loophole across civil litigation where parties might attempt to avoid costs liability through procedural technicalities.

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