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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mahandru v Nielson [2021] EWHC 2297 (QB) (09 July 2021) URL: http://www.bailii.org/ew/cases/EWHC/QB/2021/2297.html Cite as: [2021] EWHC 2297 (QB) |
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QUEEN'S BENCH DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
____________________
RAJEVE MAHANDRU |
Claimant/Appellant |
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- and - |
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DR EJIRO NIELSON |
Defendant/Respondent |
____________________
MR MANSOOR FAZLI (instructed by Victory Solicitors) appeared on behalf of the Defendant/Respondent.
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Crown Copyright ©
MRS JUSTICE STEYN:
Background
The Recorder's decision
"This is an unlawful eviction injunction. I have to be satisfied in accordance with well-established case law that there is a serious issue to be tried, effectively a properly arguable case that if an injunction is wrongly granted, that compensation in damages would be adequate and/or that if an injunction was not granted, damages would be adequate. The adequacy of the remedy of damages is the second aspect of the test and, finally, the balance of convenience."
"10. The defendant has told me and told the court today, and sets out as much in her particulars of defence document, that it is her only residence and she had come back to reside in her only residence having attended to family matters abroad which whilst Mr Mahandru was in the early stages of the occupation of the property. …"
"12. … I am satisfied on the evidence that is before me that it is her home, it is her principal residence, and that she needs to reside there and has a right to reside there.
13. If I granted the injunction today, it would effectively put Dr Nielson out of her home that is, I am told, her only residence."
Discussion and decision
"It amounted to a serious procedural irregularity for the judge to decide the case on the basis of evidence contained in a twenty-page statement which claimant's counsel had not been afforded any opportunity to read, let alone to take instructions on."
"The Recorder failed to have regard to paragraphs 5 and 6 of Lord Diplock's guidance in American Cyanamid v Ethicon [1975] AC 396. The Recorder had identified this as a case that was finely balanced and in which neither party would be adequately compensated in damages should an injunction turn out to have been wrongly granted. She did not identify any respect in which defendant might be more at risk of suffering uncompensatable disadvantage than the claimant. Notwithstanding this, and in breach of Lord Diplock's guidance, she failed to consider the relative strength of each party's case. This was unfair to the claimant since the WhatsApp messages, to which there could be no credible dispute, pointed towards the strength of the claimant's case being disproportionate to that of the defendant."
"The Recorder failed to have regard to paragraph 4 of Lord Diplock's guidance in American Cyanamid, since although the Recorder stated in her judgment that the case was a finely balanced one, she failed to mention or consider restoring the status quo ante."
"(4) Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo.
(5) The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies.
(6) If the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each party's case as revealed by the written evidence adduced on the hearing of the application. This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of the one party's case is disproportionate to that of the other party."
"Guideline (4) states that where other factors appear to be evenly balanced it is 'a counsel of prudence' to take such measures as are calculated to preserve the status quo. Sometimes, it is said that the principal function of the interlocutory injunction is to preserve the status quo (Siskina v Distos Compania Naviera SA [1979] AC 210, HL at p.256 per Lord Diplock; see also Daniel v Ferguson [1891] 2 Ch 27, CA). However, in a given case, the preservation of the status quo may on balance clearly incur the greater risk of injustice. Further, parties should not be encouraged to believe that the courts will be unwilling to undo by interlocutory injunction what would otherwise be a fait accompli (Thompson v Park [1944] 1 KB 408, CA), especially where one party, by conduct that reflects little credit on them, has 'stolen a march' on the other (Zockoll Group Ltd v Mercury Communications Ltd, op. cit, at p. 371 per Simon Brown LJ). The relevant point of time for the purpose of 'status quo' may be difficult to determine and may vary."
"It seems to me that whilst one can foresee a situation where the claimant can argue that there has been some manipulation on the part of the defendant, I do not consider that there is sufficient evidence for me to make that determination at this juncture. I am asked to infer from the way in which the defendant has gone about the text messaging that she somehow has manipulated the situation or changed her mind at a later juncture. I am afraid that whilst that argument is not without merit in that I can see it being arguable, I do not consider that I can reach a conclusion that the defendant has somehow manipulated the situation with regards to this property to suit her own ends."
"In deciding to exercise her discretion in favour of the defendant, the only factor cited by the judge as a reason for finding that the balance of convenience swung in her favour were 'extraneous circumstances'. It is understood that this referenced various allegations levelled at the claimant by the defendant relating to his recently failed marriage. The judge erred in having regard to these allegations, since they were extraneous and irrelevant to the issues in dispute between the parties."
Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] |