Birmingham City Council v Afsar [2019] EWHC 1619 (QB)
Mr Justice Warby Approved Judgment
MR JUSTICE WARBY: On Monday 17 June 2019, I handed down my reserved judgment giving reasons for the decisions announced at the hearing on 10 June 2019: [2019] EWHC 1560 (QB). Draft orders have since been drawn up, and largely agreed, leaving only one matter for decision: whether the claimant Council should be required to give undertakings in damages. This is an issue that was raised by me. By agreement, I have resolved that issue on the basis of written submissions, for which I thank Counsel. My conclusion is that, in the particular circumstances of this case, the Council should provide undertakings in the usual form: to comply with any order the Court may make if the Court later finds that the injunctions I have granted have caused loss to any defendant or third party for which that defendant or third party should be compensated. The Council has made clear that if this was my conclusion the undertakings would be forthcoming, so I accept them. The relevant principles appear to be these: The long-standing norm in civil litigation is to require the applicant for an injunction to provide these undertakings; the rules now provide that this should onus is therefore on an applicant which wishes to be exempted from this requirement to show why that should be done. The presumption in favour of such undertakings is reflected in the Model Order. There is no such presumption when it comes to third parties. When they are concerned, the Court must consider whether to require an undertaking to compensate them: PD25A para 5.3. But the norm, in litigation affecting Article 10 rights, is to require such an undertaking: see, again, the Model Order. The old rule that the Crown should never be required to give such an undertaking is a thing of the past. Such an undertaking may be required of central or local government bodies, or other public bodies. But this should not be done as a matter of course. This is nowadays a matter of discretion; the propriety of requiring such an undertaking should be considered in the light of the particular circumstances of the case, and what the Court considers fair in those circumstances. See Hoffman-La-Roche v Secretary of State for Trade and Industry [1975] AC 295, 364 (Lord Diplock); Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227, 274 (Lord Goff of Chieveley); Financial Services Authority v Sinaloa Gold Plc [2013] UKSC 11 [33] (Lord Neuberger). A factor of general importance that needs to be borne in mind, when exercising the discretion, is the fact that in general with few exceptions English law does not confer a remedy for loss caused by administrative law action: FSA v Sinaloa [31]. The exceptions identified by the Supreme Court were misfeasance in public office and cases of breach of the Convention rights, within s 6(1) of the HRA.
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