Damages can be awarded on the discharge of a procedurally defective injunction (Gotti v Perrett)

Dispute Resolution analysis: This is a judgment in a highly unusual case in which, in order to avoid being liable for damages and costs on the discharge of an injunction she herself obtained, a Claimant argued that the injunction application was a nullity as a result of her own procedural errors.

Gotti v Perrett [2025] EWCA Civ 1168

What are the practical implications of this case?

The facts of this judgment and the issues raised within it are unusual and unlikely to arise in many future cases. However, as the Court of Appeal observed when granting permission for this second appeal, the issue of a claim form is central to civil litigation within this jurisdiction. It may well, therefore, be of broader application to note both that an application at a pre-action stage for injunctive relief constitutes in itself “proceedings” for the purpose of various aspects of the CPR. It may be similarly significant to note that the power in CPR rule 3.10 to rectify matters where there has been an error of procedure is broad and effective enough to include designation a procedural application notice as a claim form.

What was the background?

The Appellant, the founder of a national cosmetic surgery company became involved in a dispute with the Respondent, an independent cosmetic surgery patient advocate. The Respondent made various remarks on social media to which the Appellant took exception. In April 2023, the Appellant sent a notice of intended litigation to the Respondent, alleging that the social media posts were defamatory. In July 2023, the Appellant applied for an interim injunction, seeking the removal of those social media posts. Erroneously, the Appellant failed to tick the box on the application form which indicated that the application was made in pending proceedings and did not tick the box indicating that the application was made under Part 8 of the Civil Procedure Rules. The interim injunction was granted forbidding the Respondent to post or encourage others to post or being involved in any social media groups actively posting comments or remarks considered to be defamatory about the Appellant. No directions were given regarding the issue of the claim form and no cross undertaking in damages was offered or recorded in the order. No claim form was served with the injunction order, a breach of CPR PD25A para 4.4(2). The Respondent later applied to revoke the injunction and sought damages. The Appellant conceded without delay that the injunction itself had been deeply misconceived and consented to its immediate discharge. The Respondent sought damages on the basis that the restrictions on her social media use had harmed her business and costs. The Appellant argued that as no Part 7 or Part 8 claim had been issued, the injunction application itself was a nullity. Accordingly, the Respondent had no entitlement to damages. Both at first instance and on a first appeal, the Respondent was held to be entitled to claim damages. However, in light of the centrality of the claim form to civil proceedings, permission for a second appeal was given in relation to whether the Court has power to make ancillary orders on the discharge of an injunction permitting an award of damages in these circumstances.

What did the court decide?

An application for an injunction under Parts 23 and 25 of the Civil Procedure Rules prior to the issue of a Part 7 or Part 8 Claim constitute proceedings for the purpose of various provisions of the CPR. This gave the Court jurisdiction to make orders ancillary to the discharge of even a procedurally defective injunction, specifically in relation to the award of damages and orders for the payment of costs. The issue by the County Court of the N16A in this case constituted the commencement of proceedings. The Court of Appeal endorsed the definition of HHJ Salmon below that “proceedings” includes all applications with which the court is seised, and in respect of which it is being asked to make orders, or where the court “is being invoked to do something, i.e. grant an injunction”. It also endorsed his later description that when a party takes “a course of action” in order to obtain a remedy from the court these will be “proceedings”. In any event, rule 3.10 of the Civil Procedure Rules could be used to remedy the defect which arose essentially due to the use by the Appellant of Form N16A rather than Form N208. Rule 3.10 could be used to designate the Form N16A as a claim form so as to confer the jurisdiction needed to make an award of damages and costs against the Appellent.

Case details

Court: Court of Appeal (Civil Division)

Judges: Lady Justice King, Lord Justice Stuart-Smith and Lord Justice Cobb

Date of judgment: 22 September 2025

Phillip Patterson is a barrister at Gatehouse Chambers, and a member of LexisPSL’s Case Analysis Expert Panel. Suitable candidates are welcome to apply to become members of the panel. Please contact caseanalysis@lexisnexis.co.uk.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Article by Phillip Patterson

First published by LexisNexis