Applying for an injunction amounts to commencement of proceedings

On 2 July 2025, the Court of Appeal considered the surprisingly knotty question of whether a party which applies for, and obtains, an interim injunction, but does not go on to issue a Claim Form, has ‘commenced proceedings’ and, by extension, whether the Court has the power to order the applicant to pay costs and make other ancillary orders, if the action is not ultimately pursued. At first instance, and on the first appeal of the issue, a deputy district judge and circuit judge had both described the suggestion that the Court had no jurisdiction in such circumstances, as an ‘affront to common sense’. However, the circuit judge had considered that the ‘centrality of a claim form to civil proceedings’ was one of such importance that there was a compelling reason to grant permission to appeal to the Court of Appeal. Our blog article of 14 July 2025 set out the background facts and the arguments made before the Court of Appeal in detail. On 22 September 2025, the Court of Appeal handed down its judgment in Gotti v Perrett [2025] EWCA Civ 1168.

Dismissing the appeal, the Court of Appeal held that:

the making an application for an injunction under CPR Parts 23 and 25, prior to the issuing of a claim form, amounted to ‘proceedings’ and gave the court the power to make a range of orders in respect of, and ancillary to, the application before it, including in respect of costs:

Firstly, the Court has an equitable jurisdiction to grant injunctions, which is confirmed by statute (section 37 of the Senior Courts Act 1981 in respect of the High Court, and extended to the County Court by virtue of section 38 of the County Court Act 1984). Case law has established that that power is not always conditional on the existence of a subsisting cause of action (Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47).

Secondly, the term ‘proceedings’ in section 38 of the County Court Act is wide enough to include an application for pre-action relief. The term ‘proceedings’ is not defined in the CPR and is used inconsistently within the CPR. It is clear that the CPR apply generally to ‘all proceedings’ in the County Court pursuant to CPR 2.1(1)(a). Although CPR 2.1(1)(a) expressly disapplies the CPR to certain types of proceedings, that list does not include interim or pre-action applications. It is therefore clear that the term ‘proceedings’ in CPR 2.1 is wider that what occurs after a Part 7 or Part 8 claim form is issued. CPR PD2C makes clear that ‘starting proceedings’ in the County Court may be by claim or application, and the definition of an ‘application notice’ is ‘a document in which the applicant states their intention to seek a court order’. Thus, when the County Court issues the initiating application, ‘proceedings’ are commenced, and certain parts of the CPR apply. The Court’s jurisdiction (in the strictest sense) to make orders then exists regardless of whether the proceedings are meritorious, unmeritorious, or deeply misconceived.

Thirdly, the County Court has a discrete costs jurisdiction which could be invoked in such circumstances: Section 51 of the Senior Court Act 1981 provides that the costs of an incidental to all proceedings in the county court, shall be in the discretion of the court.

Fourthly, the overriding objective requires the Court to deal with applications justly and at proportionate cost.

Fifthly, if the Court has the jurisdiction to make and discharge an injunction, then it cannot sensibly be argued that the Court does not have the power to make ancillary orders.

Further, or in the alternative, on the facts of this case, the Court could use CPR 3.10 to treat the issue of Form N16A as the issuance of a Part 8 Claim Form (having regard to the facts that, in certain causes of action, the Form N16A is to be treated as a Part 8 Claim Form, and a claim under CPR Part 8 does not require the same level of particularity in its pleading as a claim under Part 7).

The proceedings will now be remitted back to the County Court for further case management.