Pre‑Action Injunction Applications Are “Proceedings”: Court of Appeal Confirms Costs/Damages Jurisdiction and Permits CPR 3.10 to Cure Wrong Form

Case: Gotti v Perrett [2025] EWCA Civ 1168 (Court of Appeal, Civil Division, 22 September 2025)

Introduction

This Court of Appeal decision resolves a recurring and practically important question at the interface of interim remedies and case management: what is the status of a pre‑action application for an injunction issued under CPR Part 23 and Part 25 where no Part 7 or Part 8 claim is ever issued, no undertaking to issue a claim form is taken, and no cross‑undertaking in damages is given?

The appellant (claimant below), the founder of a cosmetic surgery company, obtained a county court interim injunction against the respondent, a patient advocate, using Form N16A under the Protection from Harassment Act 1997 (PfHA 1997). The order was granted after a short contested hearing but—contrary to the rules—no claim form followed, no return date was set, and no cross‑undertaking in damages was taken. Seven months later, the respondent applied to vary and discharge the injunction, and for costs and damages. The appellant then accepted his interim application was “deeply misconceived” but argued the court lacked jurisdiction to do anything except discharge the order because, absent a claim form, there were “no proceedings” at all.

The key issues were thus:

Whether a pre‑action injunction application issued on Form N16A constitutes “proceedings” for the purposes of the CPR and the courts’ ancillary powers (including costs and damages) when no claim form is issued and no undertakings are given.
Whether CPR r.3.10 can be used to remedy the use of the wrong originating document by treating an N16A as a Part 8 claim form (N208) so as to regularise the position.

Both the deputy district judge and the circuit judge rejected the appellant’s “nullity” argument—calling it an “affront to common sense”—and the Court of Appeal (Cobb LJ; Stuart‑Smith LJ and King LJ agreeing) has now dismissed the second appeal, endorsing that approach.

Summary of the Judgment

A pre‑action application for an interim injunction issued under CPR Part 23 and Part 25 is itself “proceedings” to which the CPR apply. The court retains jurisdiction not only to grant and discharge such orders but also to make ancillary orders, including as to costs and (where appropriate) damages, notwithstanding the absence of a Part 7/Part 8 claim and the absence of undertakings at the time of grant.
Further or in the alternative, CPR r.3.10 can be invoked to remedy the procedural error of having used Form N16A instead of a Part 8 claim form (N208), enabling the court to treat the N16A as the claim form in the proceedings.
The appeal was dismissed. The county court is to case manage the respondent’s claims for relief, including costs and any claim for damages arising out of the wrongful grant of the injunction.

Analysis

The statutory and procedural framework

The court’s approach is anchored in the breadth of its equitable jurisdiction (SCA 1981, s.37) mirrored in the county court (CCA 1984, s.38), and in the CPR’s scheme for applications made before a claim is issued (CPR Parts 23 and 25). The costs jurisdiction (SCA 1981, s.51) refers to “costs of and incidental to all proceedings,” which the Court of Appeal interprets broadly to include pre‑action injunction applications.

Key provisions and practice requirements featured:

CPR Part 23 (applications) permits applications “before a claim has been started” (r.23.2(4)–(5)).
Part 25 (interim remedies), both under the former PD25A and the post‑April 2025 codification, contemplates urgent pre‑issue injunctive relief—but requires an undertaking to issue proceedings promptly and a cross‑undertaking in damages (formerly PD25A para 4.4 and 5.1; now CPR r.25.9(3)).
PfHA 1997 s.3 claims are to be brought under Part 8 (CPR r.65.28; PD65)—meaning an N208 should have been used, not N16A as an originating step.
CPR r.3.10 empowers the court to remedy errors of procedure; CPR r.3.1(7) permits variation/revocation of orders to regularise non‑compliance.

Precedents cited and their influence

Fourie v Le Roux [2007] 1 WLR 320

The House of Lords emphasised the court’s in personam equitable jurisdiction to grant injunctions even pre‑issue. Lord Scott explained that a pre‑claim freezing order “is not a nullity” and takes immediate effect; if no substantive claim follows, the respondent can seek discharge. This underpins the Court of Appeal’s rejection of the “nullity” thesis: propriety concerns about failing to issue a claim do not erase jurisdiction or the legal reality of the order and its consequences.

Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47

The Supreme Court confirmed that injunctive relief is not invariably conditional on an existing cause of action. This dismantles any rigid doctrine tying injunctions to a pre‑existing pleaded claim and reinforces the Court of Appeal’s view that the court’s interim powers operate before and independent of formal claim issue.

Plevin v Paragon Personal Finance Ltd [2017] 1 WLR 1249

Plevin cautions that “proceedings” is not a term of art and must be read contextually. Here, that contextual reading—alongside s.38 CCA 1984 (remedies in “any proceedings”) and s.51 SCA 1981 (costs of “all proceedings”)—favours a broad meaning encompassing pre‑issue injunction applications issued by the court.

Hannigan v Hannigan [2000] EWCA Civ 159; Reddy v GMC [2012] EWCA Civ 310; Steele v Mooney [2005] 1 WLR 2819

These authorities show a purposive and liberal application of CPR r.3.10 to correct procedural missteps when the wrong form is used, provided the court and respondent can fairly understand what relief is sought and why. The Court of Appeal relied on this line to uphold the treatment of N16A as a Part 8 claim form where the content sufficiently conveyed the nature of the claim and relief sought.

Vinos v Marks & Spencer Plc [2001] 3 All ER 784; Peterson v Howard de Walden Estates Ltd [2023] EWHC 929

Vinos limits r.3.10: it cannot be used to override mandatory provisions (e.g., time limits). Peterson clarifies r.3.10 is not available to mend pre‑commencement defects where no proceedings exist. The Court of Appeal distinguishes Peterson because, in this case, the application was issued by the court, the fee paid, and the court seised—so there were “proceedings” within the meaning adopted, allowing r.3.10 to operate on a defect of form.

Citation plc v Ellis [2012] EWHC 764; Webb Resolutions v Countrywide (Master Nurse, 4 May 2016); Stubbins Marketing Ltd v Difrancesco [2023] EWHC 515 (Ch)

The appellant relied on these to argue no costs without claim issue. The Court of Appeal was unpersuaded: those decisions do not establish that costs orders are unavailable on pre‑issue injunction applications. Costs orders are routinely made when such applications are heard; s.51 SCA 1981 provides the underpinning.

Fraser v Evans [1969] 1 QB 349; Cream Holdings v Banerjee [2005] 1 AC 253; Practice Guidance (Interim Non‑Disclosure Orders) [2012] 1 WLR 1003

These authorities underscore the stringent approach to speech‑restrictive orders (s.12 HRA 1998), illustrating why the original injunction was “deeply misconceived.” They provide critical context but are not the doctrinal basis of the Court of Appeal’s holdings on jurisdiction and r.3.10.

Gray v UVW [2010] EWHC 2367 (QB)

Supports that failure to issue a claim after obtaining a pre‑action injunction warrants judicial scrutiny and possible sanctions, reinforcing why courts must retain control and associated ancillary powers.

The court’s legal reasoning

The Court of Appeal endorsed the “plain common sense” of the courts below and articulated five key strands of reasoning (paras 64–79):

Equitable jurisdiction and s.38 CCA 1984: The county court’s s.38 power to make orders “in any proceedings” mirrors the High Court’s equitable jurisdiction (s.37 SCA 1981). Pre‑action injunction applications fall within that concept of “proceedings.” The order made here was validly granted (even if flawed) and effective until discharge.
“Proceedings” is broader than CPR r.7.2’s “proceedings are started when … a claim form is issued”: CPR r.2.1 states the CPR apply to “all proceedings.” Part 23 explicitly caters for pre‑issue applications. Section 147 CCA 1984 defines “proceedings” inclusively (“actions and matters”). Read purposively and contextually (Plevin), “proceedings” plainly includes pre‑issue injunction applications issued by the court.
Discrete costs jurisdiction (s.51 SCA 1981): The court’s statutory power to order “costs of and incidental to all proceedings” encompasses the hearing and determination of the pre‑action application. That power is not dependent on a subsequent claim form being issued.
Overriding objective applies: It would be absurd if the overriding objective did not govern the court’s handling of pre‑action injunctions—often draconian and immediately effective. Interpreting “proceedings” to exclude such applications would deprive respondents of fairness and equality of arms at the very point where they need it most.
Concession fatal to “nullity” theory: The appellant accepted the court had jurisdiction to grant and to discharge the injunction. That concession is incompatible with the contention that there were no proceedings and that the court lacked power to make ancillary orders.

CPR r.3.10 as an alternative route

Although not strictly necessary given the court’s conclusions on “proceedings,” the Court of Appeal held that CPR r.3.10 could also be used to remedy the error in form by treating the N16A as an N208, where:

Proceedings (in the broader sense) had commenced by the court issuing the application and being seised.
The documents contained the essential information needed to understand the relief sought (Hannigan; Reddy).
Using r.3.10 would prevent an “unjustified windfall” to the applicant who misused procedure, and would further the overriding objective.

The Court carefully acknowledged limits: r.3.10 cannot license what the rules forbid (Vinos) and will not cure pre‑commencement defects where no proceedings exist (Peterson). But neither limit applied on these facts.

Impact and implications

1) The meaning of “proceedings” across interim practice is settled and widened

The Court of Appeal confirms that “proceedings” include court‑issued pre‑action injunction applications. This is a significant clarification for:

Jurisdiction: Courts retain full managerial and ancillary powers (variation, discharge, costs, and case‑management directions towards damages assessment) even if a claim form was never issued.
Costs: Respondents may seek costs of and incidental to resisting pre‑issue injunctions. The claimant cannot evade costs by withholding claim issue.
Case management: Judges can and should insert missing “usual provisions” (cross‑undertakings; undertakings to issue) or give equivalent directions, and can use r.3.10 to regularise form where appropriate.

2) CPR r.3.10 remains a practical safety‑valve—but not a panacea

Where the wrong form is used but the court is seised and understands the relief sought, r.3.10 can be used to treat an N16A as an N208 in PfHA s.3 claims. However, practitioners should not assume r.3.10 will cure:

Non‑compliance with mandatory time limits or service provisions (Vinos).
Defects occurring before the court is seised (Peterson).

3) Strong signal against procedural gamesmanship

The judgment sends a clear message: a party who obtains a pre‑action injunction cannot then rely on their own failure to issue a claim or to give undertakings to immunise themselves from costs or other consequences. Courts may regard such tactics as an “affront to common sense” and act to prevent unjust windfalls.

4) Practical discipline for interim relief practice

The case starkly illustrates baseline requirements for pre‑issue injunctions:

Use the correct court and cause of action: defamation in the High Court (Media and Communications List), not county court; note s.15(2)(c) CCA 1984. Be cautious about PfHA’s jurisdictional reach (Lawal v Adeyinka) and the claimant’s residence.
Deploy the correct originating process: PfHA s.3 claims are Part 8 claims (N208). An N16A is not a self‑standing originator for such claims.
Comply with speech‑related safeguards: s.12 HRA 1998; Cream Holdings test; draw human rights engagement to the court.
Secure the “usual provisions”: cross‑undertaking in damages; undertaking to issue a claim form immediately; serve claim with the order where possible; set a return date; ensure terms are precise, workable, and limited to the parties.

5) Damages when no cross‑undertaking was taken

The Court did not award damages; it affirmed jurisdiction to make orders enabling the respondent to seek them. Whether damages can be recovered will depend on the ultimate route the court authorises (e.g., via a regularised claim and directions or, in appropriate cases, via a cross‑undertaking introduced on variation with suitable temporal scope). The important point is jurisdictional: the absence of a recorded cross‑undertaking and of a claim form does not deprive the court of power to case manage towards redress for wrongful injunction.

Complex concepts simplified

“Proceedings” (contextual meaning): Not limited to life after a claim form is issued. For interim applications, it includes any step by which the court is invoked to grant relief, once the court issues the application and is seised.
In personam equitable jurisdiction: The court’s power to command or forbid a person’s conduct, which can be exercised before a substantive claim is filed (e.g., freezing orders), subject to propriety and safeguards.
Undertaking to issue: A promise to the court to issue a formal claim promptly after an interim order—ensures interim measures are truly temporary and tied to a substantive claim.
Cross‑undertaking in damages: The applicant’s promise to compensate the respondent (and sometimes third parties) for losses caused by an injunction if it later proves unjustified—often a precondition to relief.
CPR r.3.10 (remedying procedural errors): A rule allowing courts to fix errors of procedure (like using the wrong form) where proceedings exist and the correction does not contradict mandatory rules.
Part 7 vs Part 8: Part 7 is the standard route for disputed fact claims; Part 8 is streamlined for claims primarily raising issues of law or where detailed pleadings are unnecessary (PfHA s.3 claims go under Part 8).
N16A vs N208: N16A is a general application for an injunction; N208 is a Part 8 claim form. For PfHA s.3, N208 is the correct originating document.
“Nullity” vs “irregularity”: A nullity is legally void from the start; an irregularity is a correctable misstep. The court held the pre‑issue injunction application was not a nullity.
Section 12 HRA 1998: Special protection for freedom of expression; courts should not restrain publication before trial unless the applicant is likely to establish that publication should not be allowed.
Totally Without Merit (TWM) certification: A court’s mark that an application has no realistic prospect of success, triggering restrictions on further applications without permission.

Practice points and checklists

For claimants seeking pre‑issue injunctions

Choose the right forum and cause of action (e.g., defamation must be in the High Court; beware of PfHA territorial scope).
Use N208 (Part 8) to commence PfHA s.3 claims; accompany with N16A if seeking urgent relief, but do not treat N16A as a substitute for issuing a claim.
Prepare and give the “usual provisions”: cross‑undertaking in damages, undertaking to issue promptly, proposed return date, tight and clear terms, penal notice where appropriate.
Identify and address s.12 HRA: explain why the stringent threshold is met; disclose all material facts.
Expect costs exposure if the application is misconceived or abusive; failure to issue a claim will not shield you after this case.

For respondents to pre‑issue injunctions

Do not assume you must await a claim form to seek redress. Apply to vary/discharge, seek insertion of undertakings, and ask for costs and case‑management directions toward damages.
Consider a TWM certification where appropriate; preserve evidence of loss to support any damages claim.
If speech is restrained, emphasise s.12 HRA, Cream Holdings and the Practice Guidance; challenge vagueness and overbreadth of orders.

For judges

At the first hearing, rigorously police compliance with Part 25 safeguards: take undertakings (issue and damages), set a return date, and ensure orders are precise and enforceable.
If the wrong form was used, consider CPR r.3.10 to regularise, where consistent with Vinos and Peterson and in service of the overriding objective.
Where a claimant fails to issue a claim, consider sanctions and appropriate costs orders; ensure respondents are not left without remedies.

Conclusion

Gotti v Perrett establishes a clear and practical rule: a pre‑action injunction application issued by the court is “proceedings” for the purposes of the CPR and the courts’ ancillary powers. That construction secures fairness at the critical early stage when injunctions take immediate effect, aligns with equitable principle, and prevents litigants from gaming the system by withholding claim issue and undertakings.

The judgment also confirms that CPR r.3.10 can be used, where appropriate, to cure the use of the wrong originating document by treating an N16A as a Part 8 claim form. The decision thus promotes the overriding objective, discourages procedural sharp practice, and provides certainty that respondents to wrongful pre‑issue injunctions can obtain costs and be case‑managed towards damages even when the original applicant failed to comply with the rules.

In short, the Court of Appeal has restored common sense to a vital corner of interim practice: effective orders carry effective responsibilities, and the court’s jurisdiction follows the reality of what it is asked to do.

Pre‑Action Injunction Applications Are “Proceedings”: Court of Appeal Confirms Costs/Damages Jurisdiction and Permits CPR 3.10 to Cure Wrong Form — Commentary on Gotti v Perrett [2025] EWCA Civ 1168