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15. Notes For effect of pending appeal on injunction. Dictum of Jessel MR in Wilson v Church (1879) 11 Ch D at 578 explained. para 896. Harrison v Harrison.Dismissal of motion by judge . 206-209. [1955] 2 WLR 256. Harrison's Share under a Settlement. Wilson v Church (No 2) (1879) 12 Ch D 454 and Orion Property Trust Ltd v Du Cane Court Ltd [1962] 3 All ER 466 applied. Cases referred to in judgment Cropper v Smith (1883) 24 Ch D 305. Polini v Gray (1879) 12 Ch D 438. 53 LJCh 170. post). Re. Dicta of Jessel MR and Cotton LJ in Otto v Lindford (1881) 18 Ch D at 394.Jurisdiction of judge to grant applicant injunction pending appeal against dismissal of motion. Public Trustee v Lawrence [1971] 3 All ER 433. 395 not followed. it is not necessary for the applicant to apply to the Court of Appeal (see p 453 a b and d. Ropner v Ropner [1955] 1 All ER 185.Jurisdiction . for the purpose of the order is to prevent the Court of Appeal's decision from being rendered nugatory should that court reverse the judge's decision (see p 454 a b d e and f. Lawrence's Will Trusts. 4206. Re Ropner's Settlement Trusts. and for cases on the subject.[1974] 2 All ER 448 [1974] 2 All ER 448 Erinford Properties Ltd v Cheshire County Council CHANCERY DIVISION MEGARRY J 12. Where a judge dismisses an interlocutory motion for an injunction he has jurisdiction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal. 51 Digest (Repl) 870.Injunction pending appeal . [1971] 3 WLR . see 21 Halsbury's Laws (3rd Edn) 357. 21 Digest (Repl) 533. [1972] Ch 418. 18 MARCH 1974 Injunction . see 21 Halsbury's Laws (3rd Edn) 426. 987. 312. 14. There is no inconsistency in granting such an injunction after dismissing the motion. [1955] Ch 260. For appeals against orders made on an interlocutory motion for an injunction. para 746. 13. post).2 All England Law Reports/1974/Volume 2 /Erinford Properties Ltd v Cheshire County Council . Re. 49 LT 548. CA. see 28(2) Digest (Reissue) 986. CA.Motion for interlocutory injunction .

CA. The facts are set out in the judgment. and counsel for the county council had no instructions to renew it or offer any other undertaking. 208. Ultimately I held that I should grant the injunction in this modified form. Wilson v Church (1879) 11 Ch D 576. 18 March 1974. 354. primarily on the ground that I had no jurisdiction to grant it. Counsel for the plaintiffs thereupon moved ex parte for an injunction in the same terms pending an appeal by the plaintiffs.3 188. 21 Digest (Repl) 533. 207. CA. Counsel for the county council thereupon acted on an intimation that he had already made and moved ex parte to discharge or modify the injunction. but this came to an end with the dismissal of the motion. Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 3 All ER 384. J A R Finlay QC and Lesley Appleby for the county council. 28(2) Digest (Reissue) 987. 311. 48 LJCh 690. which he said would allow time for him to give notice of appeal and to serve notice of motion to extend the injunction. 209. and for the reasons that I have given I dismissed that motion. General London and Urban Properties Ltd v Du Cane Court Ltd [1962] 3 All ER 466. Cheshire County Council ('the county council'). 51 LJCh 102. however. In this case the plaintiffs moved for an interlocutory injunction to restrain the defendant county council from considering the plaintiffs' planning applications otherwise than concurrently with a different planning application for adjoining land made by joint applicants who were not parties to the action. 41 LT 173. Sturla v Freccia (1879) 12 Ch D 438. He volunteered. pending an appeal by the plaintiffs against the order of [1974] 2 All ER 448 at 449 Megarry J made on 14 March 1974 dismissing a motion by the plaintiffs for an interlocutory injunction against the county council. 28(2) Digest (Reissue) 986. CA. to discharge an injunction granted ex parte by Megarry J to the plaintiffs. The plaintiffs appeared in opposition to the ex parte motion. [1962] 1 WLR 1085. CA. Erinford Properties Ltd. 21 Digest (Repl) 535. The county council had previously been bound by an undertaking in similar terms. and in the end counsel for the plaintiffs was content to seek an ex parte injunction only over 20 March. George Newsom QC and R M K Gray for the plaintiffs. Polini v Gray. 28(2) Digest (Reissue) 986. Wilson v Church (No 2) (1879) 12 Ch D 454. Otto v Lindford (1881) 18 Ch D 394. 41 LT 296. [1972] RPC 786. Orion Property Trust Ltd v Du Cane Court Ltd. that the next meeting of the appropriate body of the county council would not be until 28 March. and that only the Court of . The following judgment was delivered. [1972] 1 WLR 1213. MEGARRY J. Motion This was an ex parte motion by the defendants.

so that the motion of counsel for the county council became what in Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd was described as an opposed ex parte motion. The decisions. The judge already knew all the facts of the case and so the point could be argued and decided with relative speed and convenience at the conclusion the main motion. At least at first sight the dicta support the view that a judge who has dismissed an action has no jurisdiction to grant an injunction restraining the successful defendants from parting with the subject-matter of the action pending an appeal. and so showed that it was not right to preserve the status quo pending appeal. Broadly. leaving the plaintiffs to a complex and unsatisfactory claim in damages. [1962] 1 WLR at 1090). was that if the motion for an injunction failed and the unsuccessful party sought an injunction pending an appeal against the refusal. cases of final and not interlocutory orders. a . I adjourned this motion to the next day so that the authorities could be consulted.4 Appeal could do so. [1962] 1 WLR at 1090) that he found considerable difficulty in reconciling entirely what was said in the four cases which had been cited to him. After some discussion counsel for the county council accepted that there was plainly still a subsisting action and that I had not become wholly functus officio. that the plaintiffs' planning applications would not be decided otherwise than concurrently with the joint planning application) would be destroyed. on the other hand. Such a principle plainly seems to be consonant with the undoubted jurisdiction of a judge who has made an order to grant a stay of execution of that order pending an appeal. at all events so long as my order remained unperfected. The settled practice. I had no jurisdiction. on the one hand. counsel asserted (without citing authority). After a brief discussion. even though the action has wholly failed'. Although the county council's motion was ex parte. or alternatively it would be quite wrong. and in the end I had the advantage of an argument by junior counsel for the plaintiffs. In this Pennycuick J said ([1962] 3 All ER at 471. nothing new had happened since the refusal of the injunction which would make it proper to grant now. on the other hand. the conflict may be said to centre round dicta in two very short judgments by Jessel MR in the Court of Appeal in Wilson v Church and Otto v Lindford. He also accepted that if on the main motion I had granted an injunction it would still have been open to me to suspend it or otherwise modify its effect pending an appeal. dwelt on the merits of speed and convenience. the effect of the principle is that 'the court of first instance has jurisdiction to make an order preserving the subject-matter of the action in the appeal. But he said that when I had held (as I did) that the plaintiffs were not entitled to an injunction. I indicated that I would hear what could be said on behalf of the plaintiffs. what had been refused then. In the words of Pennycuick J in the Orion case ([1962] 3 All ER at 471. whereas an application to the Court of Appeal involved seeking to disturb the existing business of that court at short notice in what sometimes would be circumstances of great urgency. support the opposite principle. he should make no application to the judge but should at once take himself to the Court of Appeal and there seek his injunction pending the appeal. and 'it may be that only the Court of Appeal itself can give an authoritative statement as to the principle to be applied in these cases'. and on the other hand the more substantial judgments in the Court of Appeal in Wilson v Church (No 2) and Polini v Gray. The most recent case put before me was Orion Property Trust Ltd v Du Cane Court Ltd. All were decisions of the Court of Appeal. Counsel for the plaintiffs contended that the essence of the matter was the power of the court to preserve the subject-matter of the dispute pending the determination of the appeal. Counsel emphasised that apart from the plaintiffs' expression of a probable intention to appeal. even in a temporary form. as it were. and as a result I have heard substantial argument on the point. and that in the present case. [1974] 2 All ER 448 at 450 Counsel for the plaintiffs. By refusing an injunction on motion a judge showed that it was not right to preserve the status quo pending trial or at all. The four cases were all. once the county council had decided the rival joint planning application. I may say. and putting that court sufficiently in possession of the facts and law involved to enable a decision to be given on the ex parte application. I do not propose to say more about them than seems necessary. merely adding my respectful concurrence with his comments. He was functus officio quoad granting an injunction in that case. to sit on appeal from myself. and hold that an injunction should be granted to preserve the status quo pending an appeal: the grant of such an injunction would be wholly inconsistent with my decision on the main motion that no injunction should be granted. the subject-matter of the alleged agreement by the county council (namely. In view of the judge's ample discussion of the cases.

That reports the argument of counsel that the application was to stay proceedings pending appeal and ought . and the plaintiffs thereupon entered an appeal and. counsel for the county council naturally relied on these words as showing that I had had no jurisdiction to grant the injunction that counsel for the plaintiffs had obtained. That. without applying to the judge. seems to be the view of the editors of the Supreme Court Practice 1973 a. b Page 1693 I do not think that this is right. where the case is cited as authority for the proposition that-- a Volume 1.5 jurisdiction which is the subject of Rules of Court. rr 16 and 17.' [1974] 2 All ER 448 at 451 Before me. p 856 'Where an action has been dismissed in the Court below. rr 13 and 14. to restrain a defendant from parting with a trust fund pending an appeal: the application for that injunction must be made to the Court of Appeal. and is now RSC Ord 59. and the Court of Appeal could properly grant the injunction. [1962] 1 WLR at 1089). indeed. The point seems to be made somewhat clearer by the report of the same case in the Law Journal Reports. In other words. e.' This repeats words in the Annual Practice 1962b to which Pennycuick J referred in the Orion case ([1962] 3 All ER at 470. Justice Fry. The Court of Appeal held that it had jurisdiction and granted the injunction. but to the nature of the particular application being made to the court. that Court has no jurisdiction. I think I should say something about the two cases which appear to be opposed to the principle. I think Jessel MR was directing himself not to what jurisdiction remained in a judge once he had given judgment. any application for a stay ought to be made in the first instance to the trial judge. In Wilson v Church it had been argued that the application for an injunction was in substance an application to stay proceedings pending an appeal. for the action had been dismissed and so there was nothing to stay. moved the Court of Appeal for an injunction to restrain the defendants from parting with the trust funds pending the appeal. Jessel MR is reported as delivering a twosentence judgment with which Brett and Cotton LJJ simply concurred. The rule requiring an application for a stay to be made in the first instance to the trial judge accordingly had no application. he had no jurisdiction to stay the proceedings pending the appeal. Fry J dismissed it..g. The answer to this was that no question of staying proceedings could arise. and this application for an injunction was properly made to the Court of Appeal. so the application for the injunction ought to have been made initially to Fry J. so that just as under what was then RSC Ord 58. The first sentence runs (11 Ch D at 578): 'The action having been absolutely dismissed by Mr. In Wilson v Church there had been a claim against trustees for moneys in their hands.

The words in question in the Law Reports version of Wilson v Church (11 Ch D at 578) are. Otto v Lindford. the then RSC Ord 58. r 17. What had happened there was that Bacon V-C had dismissed an action with costs. it is easy to see how a court which has had cited to it the words relating to jurisdiction which appear in the Law Reports version of Wilson v Church might easily. for that order did not give any directions for dealing with the funds. That was not an application to stay proceedings under the order appealed from. and these are not the same as 'no jurisdiction to grant such an injunction' that appear in Otto v Lindford (18 Ch D at 395). The plaintiffs there were asking for an injunction to restrain the trustees from parting with the trust funds pending the appeal. however.' These latter words. Second. there are two things that I should say with the greatest respect. The defendant appealed. Jessel MR had expressed the view that if the trial judge refused a stay. had no jurisdiction to grant such an injunction. (Oddly enough. and the Court below having dismissed the action. This is an original motion. when dealing briefly with a short application where the point for decision was quite different. Brett MR read (24 Ch D at 311) the whole of the judgment of Jessel MR in Otto v Lindford and then said: 'That is nothing more than rule 17'. 395). does not take into account the other case. Cotton LJ said (18 Ch D at 395): 'I also was a party to the decision in Wilson v. Otto v Lindford and another decision of Jessel MR were subsequently explained and in some degree disapproved by the Court of Appeal in Cropper v Smith. that is. the application to the Court of Appeal must necessarily be a motion by way of appeal. This dealt with the rules that applications to stay proceedings must be made in the first instance to the trial judge. of course. counsel replied that he had not done so because Wilson v Church had held that if an action had been dismissed the court below had no jurisdiction to stay proceedings. and that there was concurrent jurisdiction in the court below and in the Court of Appeal. The action was dismissed.' On this. However. refer to that case in the same kind of language: Wilson v Church came into the matter no more than being a case of an entirely different description which required to be distinguished. and I agree with the view taken of it by the Master of the Rolls. Bowen LJ (24 Ch . 'no jurisdiction to stay the proceedings pending the appeal'. Brett MR and Cotton and Bowen LJJ all held that this was not accurate. Jessel MR began his short judgment with these words ((1881) 18 Ch D at 394. and Cotton LJ (24 Ch D at 314) expressed himself similarly. referring to Wilson v Church: 'That was a case of an entirely different description. That. First. The Court of Appeal held that where the application was to stay any proceedings under the order made by the court below (in that case [1974] 2 All ER 448 at 452 the order for costs) the application should be made initially to the trial judge. It looks as if an interlocutory observation which stopped counsel from pursuing a fallacious argument has in the Law Reports version been transformed into part of the judgment. and the application must be made to the Court of Appeal.6 to have been made to the court below. simply granting the injunction and advancing the hearing of the appeal. whereat Jessel MR said (48 LJCh at 690): 'No one can say that this is an application to stay proceedings in the action. and applied to the Court of Appeal for leave to serve short notice of motion to restrain the plaintiff from enforcing the order for costs pending the appeal. and the Law Journal version seems to me to be the more probable. Furthermore. When asked if he had applied to Bacon V-C. The judgment of Jessel MR is then reported without the first sentence that appears in the Law Reports and that I have quoted. plainly provide some support for the view that Wilson v Church was concerned with the jurisdiction remaining in a judge who had dismissed an action. and the Court of Appeal and the court below could not have co-ordinate jurisdiction. Church.' Counsel then argued that the case was not one for an injunction: and counsel on the other side were not called on. requiring any application for a stay to be made to the trial judge in the first place. of course.

these considerations seem to me to make the case before me a fortiori. or. that of inconsistency: and as I indicated to him during the argument. Yet again. and the judge had then granted an injunction pending an appeal.7 D at 316) compared the Law Reports and Law Journal Reports versions of an earlier decision c in demonstrating that Jessel MR had misunderstood the effect of that earlier case. it seems. However. say that considerations such as these dispose of the phrase 'had no jurisdiction to grant such an injunction' in Otto v Lindford (18 Ch D at 395). there are the substantial judgments in Polini v Gray and Wilson v Church which Pennycuick J discussed and relied on in the Orion case (and I shall not repeat). Counsel for the county council disclaimed any contention that injunctions stood in a category by themselves. the selfsame relief that had been refused at the trial or on motion. Again. how can a judge. pending appeals from the Court of Appeal to the House of Lords. pending appeal. it may be technically less difficult to contend that the Court of Appeal is functus officio when it has dismissed an appeal and the loser wishes to appeal to the House of Lords than to contend that a trial judge is functus officio when he has dismissed an action and the loser wishes to appeal to the Court of Appeal: for in the latter case. I do not think that these contentions are sound. the plaintiff failed in a claim to have a receiver appointed. That was not a case in which an injunction had been sought in the action and refused. and until it has been it is open to this court to modify or even revoke the decision. and the injunction granted pending appeal was merely to restrain the successful defendants from acting on their success pending the appeal. hold that it is right to grant them a similar though more limited injunction? Counsel for the county council did not challenge the decision on Orion. in the case before me no order dismissing the motion has yet been perfected. are more fully set out in the report in the All England Law Reports. an application for an injunction to restrain a successful defendant from acting on his success seems to constitute an original motion. despite the words of Jessel MR that I have quoted. as contrasted with the former. Furthermore. for example. consistently with his judgment. of course. I may say. seemed to me to be his real case.) I do not. whereas here there was no new event: the intimation of a probable intention to appeal was not such an event. I had jurisdiction to grant the injunction that I granted. Furthermore. the decision by the trial judge had been as to the ownership of certain shares. 45 LJCh 667 [1974] 2 All ER 448 at 453 As against that phrase. in some cases. the proceedings are still within the same court. whereas the authorities discussed in the Orion case. be treated quite differently from the case of an inconsistency between a declaration or . in that case subsequent events had occurred (the defendant company had issued some new shares). and only the Court of Appeal could. Having held that it would be wrong to grant the plaintiffs an injunction. the Supreme Court. were all concerned with trials. as may be considered proper: see Re Harrison's Share under a Settlement. but they cannot add to the weight of a phrase which was admittedly not of the ratio. c Cooper v Cooper (1876) 2 Ch D 492. and also the actual decision in the Orion case itself. It seems to me that on principle and on authority. In that case. the judge could not appoint a receiver pending an appeal. and I do not see what there is to exclude the jurisdiction of the court to hear and decide such motions in this one limited class of case. It is less difficult to contend that a trial judge is functus officio if he has dismissed an action than if he has merely dismissed a motion in an action that is still very much alive. said counsel. All of these point to a judge not being stripped of his jurisdiction as soon as he dismisses the proceedings before him. rather than jurisdiction. On this argument. that. I turn to the other way that counsel for the county council put his case. and said that if. and the Orion case itself. but he distinguished it: the complicated facts of that case. The argument seemed in the end to come to the alleged inconsistency between granting. such a case should. It is true that the motion before me is merely an interlocutory one.

Putting it shortly. and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. In each case the successful party is prevented from reaping the fruits of his success until the Court of Appeal has been able to decide the appeal. the latter form of inconsistency was no bar to the judge granting the injunction. or to grant the injunction would inflict greater hardship than it would avoid. [1974] 2 All ER 448 at 454 as by enjoining him from making any distribution of the property pending the appeal. knows all about the case and can deal promptly with the application. I can see no real inconsistency in any of these cases. where the application is for an injunction pending an appeal. perfectly consistently with his decision. I accept. I would apply the convenience of the procedure for the one to the other. as where any appeal would be frivolous. I cannot see that a decision that no injunction should be granted pending the trial is inconsistent. the question is whether the plaintiff has sufficiently proved his case. this Court ought to see that the appeal. I decide nothing on whether it ought to be [1974] 2 All ER 448 at 455 extended: that I leave for argument and any evidence that may be adduced if an extension is sought. recognise that his decision might be reversed. is the possibility that the judgment may be reversed or varied. speaking of an appeal from the Court of Appeal to the House of Lords. and for none are there more public and authoritative explanations of their errors than for judges. That was the principle which Pennycuick J applied in the Orion case. or that by refusing an injunction pending the trial the judge becomes functus officio quoad granting any injunction at all. of course. on a motion the question is whether the applicant has made out a sufficient case to have the respondent restrained pending the trial. of course. be many cases where it would be wrong to grant an injunction pending appeal. But subject to that. Neither the Law Journal report of Wilson v Church nor Cropper v Smith was cited during . No human being is infallible. he said.8 decision that A owns certain property and an injunction fettering A's rights of ownership pending appeal. This is not a case in which damages seem to me to be a suitable alternative. Although the type of injunction that I have granted is not a stay of execution. and not because I felt any real doubts about my judgment on the motion. is not nugatory'. the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church (No 2) ((1879) 12 Ch D at 458). The questions that have to be decided on the two occasions are quite different. There may. in which case the Court of Appeal will at least have whatever assistance is provided by knowing how the judge dealt with the application. of course. One of the important factors in making such a decision. with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction. either logically or otherwise. I should add this. the question is whether the judgment that has been given is one on which the successful party ought to be free to act despite the pendency of an appeal. it achieves for the application or action which fails the same sort of result as a stay of execution achieves for the application or action which succeeds. The Court of Appeal will not be troubled with it unless one of the parties is dissatisfied with the decision of the judge. Except where there is good reason to the contrary (and I can see none in this case). that convenience is not everything. and although the cases had not then been cited to me. if successful. that I granted counsel for the plaintiffs the limited injunction pending appeal that he sought. Judges must decide cases even if they are hesitant in their conclusions. On the other hand. exercising his undoubted right of appeal. Accordingly. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may. 'when a party is appealing. but I think that considerable weight should be given to the consideration that any application for a stay of execution must be made initially to the trial judge. He. for these reasons the county council's motion to discharge the injunction fails and the ex parte injunction stands. of course. On the trial. where. and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. it was on that principle. and so on.

Hancock & Willis agent for Ellis Moxon. they merely seemed to confirm to some extent the view that I had already formed without their aid. Solicitors: Sharpe. and so in accordance with Re Lawrence's Will Trusts ([1971] 3 All ER 433 at 447. and I therefore considered whether before giving judgment I ought to restore the case for further argument on those authorities. if it is desired to make any submissions on this point I will of course hear them.9 argument. However. . Crewe (for the plaintiffs). However. Pritchard & Co (for the county council). [1972] Ch 418 at 436. Motion to discharge injunction dismissed. 448. R W Farrin Esq Barrister. 437) I have not sought further argument.