A WEEK IS A LONG TIME IN POLITICS: FOUR WEEKS IS EVEN LONGER IN LAW: CLAIMANT REFUSED INJUNCTION BECAUSE THEY HAD NOT ISSUED PROCEEDINGS

In Hayes v Pack & Ors [2022] EWHC 2508 (KB) Mr Justice Johnson refused to grant an injunction.  The unusual nature of the application should not hide the fact that the application was refused because the claimant had failed to issue proceedings, having had plenty of opportunity to do so.

“… it is not necessary for Ms Hayes to secure an interim remedy in order to start her claim. She could have started her claim before making the application for an interim remedy, or at the same time as making her application, or even on the day of the hearing. She could have done so at any time within the last month”

THE CASE

The claimant was a member of the Liberal Democrats Party. She was expelled on the 1st September 2022. On the 28th September 2022 she issued an application for an injunction to allow her to take part in internal party elections for President of the Party, to take place on the 10th October 2022.  The application for an injunction was made, but proceedings were not issued.

THE ABSENCE OF A CLAIM FOR OR PLEADED CASE

The absence of Particulars of Claim meant that the judge had to work through a number of documents.

  1. Ms Hayes has not issued a claim form. Nor has she provided the court with proposed draft particulars of claim. It has been necessary to seek to identify her proposed claim from a combination of (a) the skeleton argument lodged in support of the application, (b) pre-action correspondence, (c) Ms Hayes’ witness statements, and (d) Ms Peykova’s oral submissions.

THE FAILURE TO ISSUE PROCEEDINGS WAS FATAL TO THE APPLICATION

 

The hearing was heard on the 10th October 2022.  Proceedings had not been issued.  The judge held that this failure to issue, in itself, was fatal to the claimant’s application.

    1. The purpose of an interim injunction is to further the overriding objective of dealing with the case justly. An interim injunction is usually made in extant proceedings to ensure that the purpose of an otherwise viable claim is not defeated without court oversight prior to trial, and that a position is preserved that enables the court to secure the ends of justice at trial: National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16 [2009] 1 WLR 1405 PC at [16] – [19].
    1. A claim is started by issuing a claim form: Civil Procedure Rules Part 7, rule 7.2(1). When issuing a claim form the claimant is required to pay a court issue fee (unless the fee is remitted), to provide a concise statement of the nature of the claim, and to verify the claim form by a statement of truth. This procedural rigour is important. It ensures that there are extant proceedings which the proposed injunction will serve. It enables the court, when deciding whether to grant the injunction, to focus on the issues identified in the claim form (and any particulars of claim). It provides a template against which each of the elements of the test for the grant of interim relief may be assessed, particularly the merits of the claim and the balance of convenience.
    1. Ms Hayes has not started her claim. In Mr Mott’s skeleton argument, filed on 3 October 2022, he argues that injunctive relief should not be granted before the issue of proceedings. The point is not addressed in Ms Hayes’ witness statement, or in the skeleton argument that was filed on her behalf.
    1. There is power to grant an interim remedy before a claim has started. The circumstances in which that is permitted are prescribed by the Civil Procedure Rules, Part 25, rule 2(b). That states:
“the court may grant an interim remedy before a claim has been made only if—
(i) the matter is urgent; or
(ii) it is otherwise desirable to do so in the interests of justice;…”
    1. Ms Peykova says this is a case of urgency. It is only a short period of time since Ms Hayes became aware of the panel’s decision. Her attention, and that of her legal team, has been focussed on the need to secure injunctive relief. They have dealt with matters expeditiously. It has, Ms Peykova says, not been practicable to issue a claim form within the time available. Ms Hayes proposes an undertaking to issue the claim form within 21 days. When pressed on the point, Ms Peykova agreed that a claim form could be issued earlier than that if the court so directed.
    1. Alternatively, Ms Peykova said it was desirable in the interests of justice to grant an interim remedy before the issue of a claim form because of the complexity of the proposed claim and the difficult issues that it raises.
    1. I do not consider that either element of the test in rule 25.2(b) is established.
    1. As to urgency, Ms Hayes was notified of her expulsion on 2 September. She needs to secure interim relief by 10 October. That is a period of 5 weeks. The test for urgency in rule 25.2(b)(i) must be assessed in the context of the time available to secure an interim injunction, and the time that is reasonably required to issue a claim form. Where the former exceeds the boundaries of the latter then the matter is urgent: unless an injunction is granted before the issue of proceedings it will be too late. Conversely, where there is ample time to issue proceedings before securing an injunction the matter is not sufficiently urgent to justify the grant of an injunction before starting the claim.
    1. Ms Hayes has had more than ample time to start her claim. She has not given any good reason for failing to do so. In her witness statement, she says (but as a general observation, not in respect of the failure to start the claim) that she “had to crowd fund this matter” and that this “has caused some delay to my application.” She does not, however, proffer this as a reason for not starting the claim.
    1. I do not accept that the need to focus attention on securing injunctive relief means that Ms Hayes could not issue a claim form. Little additional work was required. Even after the respondents drew attention to the point in their skeleton argument, Ms Hayes still did not start her claim or address the reasons for not doing so.
    1. The matter has now become urgent, but Ms Hayes is not entitled to rely on urgency that is a consequence of her own inaction. Even if that were permissible, I would not exercise the residual discretion to grant an injunction given that Ms Hayes has had an ample opportunity to issue a claim but has delayed doing so.
    1. As to the interests of justice, there are circumstances where a case is not urgent but where it is in the interests of justice to grant an interim remedy before starting the claim. An example is a claim for relief under the jurisdiction recognised in Norwich Pharmacal v Commissioners of Customs & Excise [1974] UKHL 6 [1974] AC 133, where such relief is necessary in order to enable the applicant to start the claim. Another example is a claim for inspection under section 33(1) of the Senior Courts Act 1981 where that is necessary before the claim is started.
    1. Here, it is not necessary for Ms Hayes to secure an interim remedy in order to start her claim. She could have started her claim before making the application for an interim remedy, or at the same time as making her application, or even on the day of the hearing. She could have done so at any time within the last month. The complexity or difficulty of the underlying issues does not render it just to grant an interim remedy before starting the claim. On the contrary, it is more desirable that a claim form is issued (and, ideally, that draft particulars of claim are prepared) where the underlying issues are complex or difficult. The court is not assisted in assessing the merits of the claim or the balance of convenience by the absence of a claim form or particulars of claim. That is particularly so where Ms Hayes seeks to advance novel arguments as to the scope of the contractual duties in relation to the exercise of disciplinary proceedings by an unincorporated association (see paragraph 27 above), and where she seeks to advance an allegation of bias (see paragraph 28 above).
  1. Accordingly, Ms Hayes has not established that the court may grant an interim remedy before she starts her claim. For that reason, I dismiss the application.