Interim injunctions delays and abuse of process


20 October 2021

Delays in bringing proceedings where interim injunctions have been made can amount to an abuse of process.

In the recent High Court case of the London Borough of Havering and Others v Persons Unknown and Others [2021] Mr Justice Nicklin warned that in cases where local authorities had failed to pursue cases promptly after obtaining an interim injunction can amount to an abuse of process.

Facts

The hearing considered the conduct of five local authorities, all of which had been guilty of allowing substantial delays between the granting of an interim injunction and the progressing of the matter to a final injunction. The primary question being was it appropriate to discharge the interim injunctions that had been made in their favour.

In the most serious of situations Rochdale Metropolitan Borough Council allowed its claim to become dormant for 2 years following the making of an interim injunction despite the interim injunction being couched in wide terms.

The Judge in this case provided that while there had been an abuse of process it was nonetheless not right or proportionate to discharge the interim injunctions. This was due to the Judge considering three factors;

  1. the local authorities had not intended to abuse the Court’s process
  2. there was not clear authority that failure to properly prosecute cases could be regarded as an abuse of process
  3. a better and more proportionate response was to ensure the case was moved expeditiously to a final hearing.

The Judge did accept that some responsibility must be borne by the court for not previously making adequate directions to ensure the cases proceeded as needed but he reasoned that it is still not appropriate for parties to just disengage from the judicial process and work to their own timeline.

Comment

Part of the Judge’s decision-making process was to determine the reason why the delay had been caused. So if a local authority can point to a good reason or a reason beyond their control that should be sufficient to protect their position. However, simply saying it is expensive and there are limited resources may not be sufficient. An important note for current cases which are affected by pandemic related delays is to ensure that records are kept showing consistent attempts being made to keep in contact with the court.

It is advisable for local authorities to not unilaterally decide on plans of action that impact case management details and then not inform the court of those plans. A simple way around this is to inform the court and ask that they be flexible. Of course, some courts will be better than others but if the court feels they are informed and the local authority is engaging they are much less likely to find that the delay is an abuse of process. Practically, it makes sense from a costs point of view to make a request informally via email before making an application to the court if this proves unsuccessful.

Finally, it is important for local authorities in cases where there is no active defendant to ensure that the case is progressed and not allow it to be warehoused. Of course this can be difficult where there are a substantial number of ongoing cases and minimal resources. However, part of the reasoning of the Judge was that there was no substantial authority to suggest a protracted delay could amount to an abuse of process, but this is no longer the case.

To discuss this issue further please contact Clive Adams or another member of Birketts’ Social Housing Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.

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