Court of Appeal asked to consider whether jurisdiction exists in the absence of a claim form

On 2 July 2025, the Court of Appeal heard an appeal concerning an interesting issue of procedure for practitioners. The hearing can be viewed in two parts here and here.

The Appellant, Mr Gotti, a cosmetic surgeon, had applied, in July 2023, for an interim injunction, pursuant to section 3 of the Protection from Harassment Act 1997, against the Respondent, Ms Perrett. He maintained that Ms Perrett was responsible for defamatory and harassing Facebook posts regarding him and the staff at his clinic.

Mr Gotti’s application was made using form N16A, supported by a witness statement from his solicitor. The application was served on Ms Perrett two days before the application was heard in August 2023. Ms Perrett attended the hearing as a litigant-in-person, and the interim injunction was granted against her. The order incorporating the injunction did not record any undertaking by Mr Gotti to issue a claim form or directions for the commencement of the claim (as generally required by CPR PD 25A (as it then was; the practice direction has since been incorporated into the rule)). Nor was there any cross-undertaking in damages. The order was set to remain in force until ‘the next hearing’ but no further hearing was set. The injunction – which is described as being broad and vague in its terms – remained in force against Ms Perrett for seven months, until she was eventually able to gain assistance from specialist solicitors RPC. During that time, no claim form was issued.

On 27 February 2024, Ms Perrett’s solicitors applied (i) to vary the injunction to include a cross-undertaking in damages, (ii) to revoke the injunction, (iii) to have Mr Gotti’s application recorded as having been totally without merit, (iv) for damages through the operation of the cross-undertaking (imposed by variation), and (v) legal costs. In effect, Ms Perrett sought ancillary orders which would ‘undo’ the effects of the injunction against her insofar as was possible.

Ms Perrett’s application was heard by Deputy District Judge Robinson on 29 April 2024. By this time, Mr Gotti’s solicitors had apparently conceded that the injunction ought to be discharged, but argued that – in the absence of a claim form having been issued – the Court was not seized of the matter, and had no jurisdiction to hear the application for, much less grant, any of the wider range of relief being sought by Ms Perrett.

DDJ Robinson declared that the Court did have jurisdiction to hear Ms Perrett’s application; he discharged the injunction, and varied the August 2023 order to require Mr Gotti to issue a claim form, providing that – in the event of Mr Gotti not doing so – Ms Perrett had permission to issue a claim seeking damages and costs. DDJ Robinson then gave further directions and reserved costs. That decision was appealed to a circuit judge, HHJ Salmon. HHJ Salmon also determined that the court had jurisdiction to deal with Ms Perrett’s application (apparently describing Mr Gotti’s contention as an ‘affront to common sense’). He set aside most of DDJ Robison’s order, and instead gave directions for determination of the ‘remaining issues’ of costs and damages incidental to the interim injunction. It was Mr Gotti’s further appeal of that decision, which came before the Court of Appeal on 2 July this year.

At the hearing before the Court of Appeal, it was argued for Mr Gotti that the grant and discharge of an interim injunction, without the service of a claim form, are events which precede the Court being seized of proceedings at all; they amount to the Court being ‘involved in’ a dispute, but fall short of proceedings, and are therefore insufficient to give the Court jurisdiction to progress the litigation further or case manage it in the normal way.

More specifically, Mr Gotti contended that:

HHJ Salmon’s analysis that the Court had statutory jurisdiction was incorrect. The County Court had the power to grant an interim injunction (pursuant to section 38 of the County Court Act 1984 and section 37 of the Senior Courts Act 1981) but:
-the County Court’s general jurisdiction (in section 15 of the 1984 Act) is to hear any ‘action’ founded on contract or tort;
-‘Action’ is defined (in s147 of the 1984 Act) as any proceedings which may be ‘commenced as prescribed by plaint (claim form)’;
-‘prescribed’ means ‘prescribed by rules of court’;
-‘the rules of Court’ are the Civil Procedure Rules; if the County once had its own rules, it has not done so since the advent of the CPR; and
-the CPR provides (at CPR 28(1)) that a claim under section 3 of the Protection from Harassment Act 1997 shall be commenced using CPR Part 8, i.e. form N208 (and not form N16A). Thus, no ‘action’ had been commenced and therefore the Court’s jurisdiction was not engaged.
HHJ Salmon’s alternative analysis that CPR 3.10 could, in any event, be utilised by the Court to overcome a lack of jurisdiction on technical grounds was also incorrect: that would run contrary to the now long line of authorities regarding service of claim forms (Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors [2022] EWCA Civ 14 et al).
It followed that – beyond discharging the injunction – the Court had no power to continue the matter or make any orders. Beyond the discharge, it had no power to respond to Ms Perrett’s application of 27 February 2024, at all.
The position is analogous with pre-action correspondence – whereby a party can spend potentially hundreds of thousands of pounds in costs – with no mechanism for recovery, because there are no proceedings.

It was expressly and repeatedly acknowledged by Mr Gotti’s barrister that his application for the injunction had been deeply misconceived, that the County Court should not have exercised its jurisdiction to grant the interim injunction in the first place, and that the Court would naturally have considerable sympathy for Ms Perrett’s position as a result, but that such sympathy should not displace the rational operation of CPR rules. Ordinarily, the Court might require a cross-undertaking in damages at the outset which would provide an insurance – by means of a claim for breach of undertaking – against unscrupulous claimants ‘obtaining gross indulgences and then running away’.

For Ms Perrett, it was argued that the Claimant’s argument was indeed an ‘affront to common sense’, and that its superficial plausibility arose by exploiting ambiguity in the terms ‘jurisdiction’ and ‘proceedings’ which do not mean the same thing in all legal contexts. More specifically:

There are two kinds of jurisdiction. There is jurisdiction in the strictest sense, whereby the Court has no power at all, and there is jurisdiction in the more everyday sense, where the Court has power but may determine that it is not appropriate to exercise it (see Lord Scott quoting Pickford LJ in Fourie v Le Roux [2007] UKHL 1:

‘…jurisdiction is a word of some ambiguity. The ambiguity was referred to by Pickford LJ in Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536 at 563. He said:

“The first and, in my opinion, the only really correct sense of the expression that the Court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e., that, although the Court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.”

HHJ Salmon was right to start his analysis with the County Court Act 1984 – that is the foundational law for the County Court’s powers. Section 38 of the 1984 Act provides that the County Court may make any order which could be made by the High Court if ‘the proceedings’ were in the High Court. ‘Proceedings’ are defined in section 147 as ‘including both actions and matters’, and it follows that there are proceedings which are neither ‘actions’ nor ‘matters’. This is neatly illustrated by section 42 of the Act which concerns the transfer of wrongly issued matters to the High Court (for example a defamation claim which cannot be issued in the County Court); those wrongly issued matters are nevertheless ‘proceedings’. In the Civil Procedure Rules, as in the wider law, the word proceeding is sometimes used as a synonym for a claim, and it is sometimes used in a wider sense, to mean anything before the Court.
You can obtain costs which are incurred before proceedings have begun. There has to be some form of proceedings, but it is not the case that a claimant must have issued a claim form, before a court can make a costs order. The power to award costs in both the County Court and High Court, which derives from section 58 of the Senior Courts Act 1981 gives both Courts power to award costs in all proceedings. The High Court also has inherent powers to award costs (which the County Court could avail itself of by virtue of section 38 of the 1984 Act).
Whilst the general rule is that the Court will not exercise its powers in the absence of originating process, it frequently does in certain circumstances.
As Mr Gotti concedes that the Court had the power to make the injunction and to discharge, it must follow that the Court had the power to make ancillary orders. There were proceedings as defined in statute on foot and the Court did have jurisdiction in the true sense; the Court was seized of an issue it was required to determine – twice over in effect – by Mr Gotti’s application for the injunction and Ms Perrett’s application for discharge and ancillary orders. Nothing in the CPR serves to change that.
As to the ‘alternative ground’ of CPR 3.10), HHJ Salmon had considered that Mr Gotti’s solicitors may have thought that they had commenced proceedings by use of the N16A form, or that they may have been malevolent in using that form and not N208. It’s uncontentious that a party – specifically a claimant who has not complied with the rules of service of a Claim Form – is not entitled to seek the Court’s indulgence in order to circumvent them, but in the extraordinary circumstances of this case, it was appropriate for HHJ Salmon to use the discretionary power in CPR 3.10 on the Court’s own motion.

Judgment from the Court of Appeal is reserved. If the Court of Appeal rejects the appeal, the underlying case will proceed in accordance with HHJ Salmon’s order in the County Court.