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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Octagon Overseas Ltd & Anor v Coates [2017] EWHC 877 (Ch) (18 April 2017) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2017/877.html Cite as: [2017] WLR(D) 308, [2017] 4 WLR 91, [2017] EWHC 877 (Ch), [2017] HLR 26 |
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CHANCERY DIVISION
On Appeal from HHJ Madge, Sitting in the County Court at Central London
B e f o r e :
____________________
(1) OCTAGON OVERSEAS LIMITED (2) CANARY RIVERSIDE ESTATE MANAGEMENT LIMITED |
Appellants/Defendants |
|
- and |
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ALAN COATES |
Respondent/Claimant |
____________________
Amanda Gourlay (instructed by Downs Solicitors LLP) for the Respondent
Hearing Date
____________________
Crown Copyright ©
The Background
"It was evident to the tribunal that Mr Coates is really a service charge manager, and the tribunal considers that this is actually what the estate required, a manager who can set budgets, arrange for repairs and maintenance and services to be provided, and then provide financial information to the leaseholders and involve them in decisions involving their homes."
(i) Changing any locks to the premises;
(ii) Removing any property from the premises;
(iii) Interfering with the manager's exercise of his obligations under the order of 5 August 2016 [which must mean the order of 15 September 2016];
with the balance of the application for an injunction adjourned to 7 October 2016.
(i) It was wrong to grant the injunction against the Second Defendant (First Appellant), Octagon Overseas Limited;
(ii) There is no cause of action which can be enforced by an injunction: it being a claim for an injunction to enforce the decision of the FTT (Property);
(iii) The injunction is itself flawed as it is far too broad and/or too vague and insufficiently particularised.
The First Ground of Appeal the grant of the injunction against D1
The Second Ground of Appeal the issue as to whether the court had jurisdiction to grant the injunction.
"A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amendable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction.The High Court has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment "
The Court of Appeal in Watson v Durham University [2008] EWCA Civ 1266 reiterated the need for an underlying cause of action in order for an injunction to be granted and, in Marketmaker Beijing Co Ltd & Ors v CMC Group Plc & Ors [2004] EWHC 2208, Stanley Burnton J. set out that with the exceptions of freezing injunctions and injunctions granted for the purpose of preserving evidence or otherwise protecting the process of the Court, an injunction requires a cause of action. Both Matchmaker and Watson v Durham University were, of course, decided before Cartier
but, in my judgment, are still good law.
"Any decision of the First-tier Tribunal or Upper Tribunal under or in connection with an enactment specified in section 176A(2), other than a decision ordering the payment of a sum (as to which see section 27 (enforcement) of the Tribunals, Courts and Enforcement Act 2007), is to be enforceable with the permission of a county court in the same way as orders of such a court"
The relevant parts of CPR rule 70.5 provide:
"(3) If an enactment provides that a decision or compromise is enforceable or a sum of money is recoverable if a court so orders, an application for such an order must be made in accordance with paragraphs (4) to (7A) of this rule.
(4) The application
(a) may, unless paragraph (4A) applies, be made without notice; and
(b) must be made to the court for the district where the person against whom the order is sought, resides or carries on business, unless an enactment, rule or practice direction provides otherwise or the court otherwise orders.
(4A)
(5) The application notice must
(a) be in the form; and
(b) contain the information Required by Practice Direction 70.
(6) A copy of the decision or compromise must be filed with the application notice.
(7) An application other than in relation to a conditional compromise may be dealt with by a court officer without a hearing."
PD.70 provides
"4.1 The information referred to in rule 70.5(2A) must
(a) be included in the practice form N322B ;
(b) specify the statutory provision under which enforcement or the recovery of a sum of money is sought;
(c) state the name and address against whom enforcement or recovery is sought;
(d) where the decision or compromise requires that person to pay a sum of money, state the amount which remains unpaid; and
(e) confirm that, where a sum of money is being recovered pursuant to a compromise, the compromise is not a conditional compromise."
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
"Such directions may include, but are not limited to:
(a) Any failure by any party to comply with an obligation imposed by this Order;
(b)
(c) "
And that is what the Respondent ought to have done if the management order was not in itself sufficient.
The Third Ground of Appeal the width of the orders and the substantive merits of the application
"1. The defendants whether by their servants or agents or otherwise be restrained from changing any locks to the premises;
2. The defendants whether by their servants or agents or otherwise be restrained from removing any property from the premises;
3. The defendants whether by their servants or agents or otherwise be restrained from interfering with the managers' exercise of his obligations under the terms of the First Tier Tribunal order of 5th August 2016."
Conclusion
HHJ Karen Walden-Smith
9 April 2017