In a recent decision, the High Court has upheld a decision to grant an injunction restraining a defendant from abusing, harassing or threatening the claimant’s solicitors until trial or further order. In doing so, it made clear that the court’s approach to granting interim injunctions has been fundamentally altered by the the Privy Council”s “ground-breaking exposition of the law of injunctions” (in the words of the Master of the Rolls) in Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24, despite that decision being not technically binding on the English courts. While the High Court’s decision here was not in a fraud context, the more expansive approach to the ambit of interim injunctions is likely to facilitate the court’s ability to respond to fraud in the context of changing commercial and financial practices: Linemile Properties Ltd v Plater [2023] EWHC 810 (Ch).
As we previously reported (here), the Privy Council’s majority judgment in Broad Idea was particularly notable for its restatement of the test for freezing injunctions, including finding that the general equitable power to make such orders extends to cases where:
- the sole purpose is to aid enforcement in foreign proceedings
- the judgment it is intended to support (foreign or domestic) will not be against the respondent to the order, and where proceedings to obtain the judgment have not yet been commenced, and even where no cause of action has yet crystallised.
However, Broad Idea also endorsed an expansive view of the court’s injunctive power more generally, superseding the more restrictive approach reflected in the House of Lords decision in Siskina v Distos CiaNaviera SA (The Siskina) [1979] AC 210. Under this approach, there is no longer the need to establish a pre-existing cause of action to enforce the legal or equitable right which is to be protected by the injunction, or to bring the case within other recognised categories such as anti-suit injunctions or freezing orders.
The High Court here observed that Broad Idea is persuasive authority that The Siskina is no longer sound law, and that it is likely be “the starting point from now on in relation to the ambit of interim injunctive relief”. Applying that, it rejected the argument that the interim injunction should not have been granted as it did not protect a legal or equitable right that the court had jurisdiction to enforce by final judgment, in particular because the solicitors were not party to the action and there was no pleaded claim corresponding to the injunction sought.
For more on the decision, see this post on our Litigation Notes blog.
For further information, please contact:
Neil Blake, Partner, Herbert Smith Freehills
neil.blake@hsf.com
