No Order As To Costs Despite Successful Application | Novelty And Conduct Considered

“I respectfilly disagree. The draft order expressly prohibits, or injuncts, the Defendant from doing specific things and puts her at risk of further contempt proceedings if she breaches the order. It is an injunction in both substance and form: the order itself expressly says that it is an injunction; the application was for a “protective injunction”; and the written submissions lodged in support of the application described it as such.”

“On the evidence before me, the individual lawyers who have received the Defendant’s communications, most notably Mr Gailani, would have a credible claim for harassment against the Defendant, contrary to the PHA, s.1(1).”

“Rather, the conceptual novelty of, and difficulty with, the application is that although brought in the name of the Claimants, it relates to the conduct of the Defendant towards different people, namely their lawyers.”

“With respect I cannot agree with that characterisation of the application. It is, in substance, an application for an injunction to prevent the Claimants’ lawyers from being harassed, albeit that it is brought by their clients and albeit that they might also be secondary beneficiaries of it.”

“To some degree, therefore, this application seemed similar to those exceptions to the cause of action rule cited in Bean where the court has granted an injunction in order to protect its own proceedings….

“In Maclain Watson & Co. Ltd v International Tin Council (No. 2) [1988] 3 WLR 1990, for example, the Court of Appeal granted an injunction to examine a judgment debtor in circumstances where the usual powers of the court to do so did not apply. Part of the rationale for the decision was the need to ensure the effectiveness of any order made by the court….

“In a similar vein, in In re Oriental Credit Ltd [1988] Ch 204, an injunction was granted to restrain a company director from leaving the country until he had complied with a Registrar’s order to attend for oral examination….

“However, I consider that these exceptions are fundamentally different to the position here. In both of these cases the injunction was granted so as to ensure the efficacy of an existing court order between two parties who were already before the court, litigating a cause of action. They do not involve any situation where the order is sought by one party, effectively to benefit another, with no such cause of action in train or even anticipated.” [40-43]

“For these reasons I am not persuaded that the court has a sound jurisdictional basis for making the injunction sought.

“If the Claimants’ lawyers wish to restrain the Defendant from communications of the kind in which she has been engaging, in my view they will need to make an application for an interim injunction to that effect.” [44-45]

“For these reasons, there should be no order for costs. This was the provisional view I indicated in my draft judgment. The later submissions I received have led me to confirm it. I note that the Claimants agree with his course. They could, of course, have chosen to seek their costs from the Defendant.”