An injunction can be sought from the Court before or after proceedings have been commenced to either stop a company or person from doing something (a prohibitory injunction) or to make a company or person do something (a mandatory injunction). Where the application is urgent, or where giving notice may defeat the purpose of the application, for example assets might be dissipated, the application can be made (and heard) without giving notice of it to the party being injuncted.
The recent decision in the case of WH Holding Ltd and West Ham United FC v E20 Stadium LLP illustrates the dangers of rushing to Court for an injunction without laying the proper groundwork or clearly identifying your objectives.
West Ham play their home games at the former Olympic Stadium in London, pursuant to the terms of a Concession Agreement, which it entered into with E20 Stadium LLP (the body responsible for transformation and management of the Stadium).
Following crowd disturbances and pitch invasions at the 10 March 2018 match between West Ham and Burnley, the Football Association charged West Ham with misconduct in respect of the events at that match (the FA Charge).
As a result of the division of responsibility for stewarding and other operations at the Stadium, West Ham sought information concerning stewarding arrangements on match day from E20 in connection with the FA Charge, first by inviting E20 to comment on the FA Charge (on Friday, 29 June 2018), which E20 declined to do, and then by demanding that E20 confirm that they would cooperate with West Ham in relation to the FA Charge (on Friday, 6 July 2018).
Despite accepting that E20 had been co-operating with West Ham until 6 July, on Monday, 9 July 2018, West Ham issued an urgent, without notice application for injunctive relief, which led to two hearings before the Court (on Monday, 9 July 2018 and Tuesday, 10 July 2018), and, ultimately, an Order requiring E20 to provide answers to a list of 27 questions. In the usual way, West Ham was also required to issue a claim in respect of the urgent injunctive relief it had sought and obtained (which it did, and which claim was substantively settled later in 2018).
The issue before the Court was which party should be liable for the legal costs incurred (approximately £130,000 was claimed by West Ham, and approximately £55,000 was claimed by E20). West Ham argued that it was the successful party, because it obtained the relief sought, and that its actions in moving swiftly to Court were justified in the circumstances. E20's position was that there was never a real dispute requiring determination by the Court, much less an urgent one, rendering West Ham's approach unnecessary and unjustified. The Court's decision
In applying the broad discretion of the Court on the issue of costs (Civil Procedure Rules Part 44), and acknowledging that it was not bound to follow the usual rule of ordering the unsuccessful party to pay the successful party's costs, the Court ordered West Ham to pay E20 its costs of the injunction proceedings and made no order as to the costs of the followon claim. West Ham was also ordered to pay E20's costs of the hearing.
Of particular note:
The Court reiterated that, in making its decision on costs, it would have regard to all of the circumstances including: (a) the conduct of the parties before as well as during the proceedings; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation; and (c) the manner in which a party pursued or defended its case.
Commencing its application for an urgent injunction at a time when E20 had not failed in any material respect to comply with West Ham's requests for cooperation was unjustified - West Ham was "trigger-happy" in applying to Court with an unfocussed application for injunctive relief in circumstances where E20 would have co-operated if asked.
Situations which call for urgent injunctive relief are often, by their nature, time sensitive and high pressure - however, this does not remove the need to properly lay the foundations for an application and to formulate the scope of that application appropriately. Failure to do so may not be fatal to obtaining the injunction (although equally, it might), but it can lead to an adverse costs order even if the injunction is secured.
Be clear in any correspondence with the prospective Defendant about what it is required to do (and, in particular, that an injunction will be applied for if voluntary compliance is not offered) and set realistic deadlines for compliance. It is important to create a solid evidentiary basis for any assertion that the prospective Defendant would not comply with its obligations without intervention from the Court.
Patrick Arben, Emma Carr and Sean Adams acted for E20 Stadium LLP.
Patrick Arben - Partner
Patrick is a partner in the commercial litigation team and specialises in the technology sector. He leads Gowling WLG's IT & Outsourcing Dispute Resolution team. His practice encompasses a variety of specialisms within the technology sector, including software engineering and systems integration projects, IT and BPO outsourcing, software licensing, data security and data protection.
Emma Carr - Director
Emma Carr helps clients to avoid disputes and liabilities arising in the first place by providing clear advice on risk management from the outset. If disputes do arise then Emma helps to resolve them quickly and in the most cost-effective and commercial manner, whether that is via litigation or alternative means.
Sean Adams - Senior Associate
Sean Adams is a senior associate, based in Birmingham, working in the commercial litigation group. His practice focuses on corporate and commercial disputes, including serious and complex fraud claims, and he works increasingly in the automotive sector. He focuses on helping clients resolve disputes with minimal impact on their ongoing business, whether through litigation, arbi tration or Alternative Dispute Resolution (ADR).
Gowling WLG (UK) LLP Two Snowhill, Birmingham, B4 6WR