448 All England Law Reports [1974] 2 Al ER Erinford Properties Ltd v Cheshire County Council CHANCERY DIVISION MEGARRY J rath, 13th, rath, 15th, 18th marc 1974 Injunction - Jurisdiction Injunction pending appeal - Motion for interlocutory injunction — Dismissal of motion by judge - Jurisdiction of judge to grant applicant injunction pending appeal against dismissal of motion. ‘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 dis- missal; it is not necessary for the applicant to apply to the Court of Appeal (see p 453 a b and d, post). There is no inconsistency in granting such an injunction after dismissing the motion, 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 de and f, post). Polini v Gray (1879) 12 Ch D 438, 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. Dictum of Jessel MR in Wilson v Church (1879) 1 Ch D at 578 explained. Dicta of Jessel MR and Cotton LJ in Otto v Lindford (1881) 18 Ch D at 394, 395 not followed. Notes For effect of pending appeal on injunction, see 2x Halsbury’s Laws (3rd Edn) 357, para 746, and for cases on the subject, see 28(2) Digest (Reissue) 986, 987, 206-209. For appeals against orders made on an interlocutory motion for an injunction, see ax Halsbury’s Laws (3rd Edn) 426, para 896. Cases referred to in j Cropper v Smith (1883) 24ChD a 53 LJCh 170, 49 LT 548, CA, 21 Digest (Repl) 533, 31. Harrison's Share under a Settlement, Re, Harrison v Harrison, Re Ropner’s Settlement Trusts, Ropner v Ropner [1955] 1 All ER 185, [1955] Ch 260, [1955] 2 WLR 256, CA, 51 Digest Repl) 870, 4206. Lawrence's Will Trusts, Re, Public Trustee v Lawrence [1971] 3 All ER 433, [1972] Ch 418, (1974) 3 WLR 388. Orion Property Trust Ltd v Du Cane Court Ltd, General London and Urban Properties Ltd -v Du Cane Court Ltd [1962] 3 All ER 466, [1962] 1 WLR 1085, 28(2) Digest (Reissue) 987, 209. Otto v Lindford (1881) 18 Ch D 394, 51 LJCh ro2, CA, 21 Digest (Repl) 533, 311. Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 3 All ER 384, [1972] x WLR 1213, [1972] RPC 786. Polini v Gray, Sturla v Freccia (1879) 12 Ch D 438, 41 LT 173, CA, 28(2) Digest (Reissue) 986, 208. Wilson v Church (1879) 11 Ch D 576, 48 LJCh 690, CA, 28(2) Digest (Reissue) 986, 207. Wilson v Church (No 2) (1879) 12 Ch D 454, 41 LT 296, CA, 21 Digest (Repl) 535, 354. Motion ‘Thiswas an ex parte motion by the defendants, Cheshire County Coundil (‘the county council’), to discharge an injunction granted ex parte by Megarry J to the plaintiffs, Erinford Properties Ltd, pending an appeal by the plaintiffs against the order of—y CchD Erinford Properties Ltd v Cheshire CC (Megarry J) 449 Megarry J made on 14th March 1974 dismissing a motion by the plaintiffs for an interlocutory injunction against the county council. The plaintiffs appeared in opposition to the ex parte motion. The facts are set out in the judgment. JAR Finlay QC and Lesley Appleby for the county council. George Newsom QC and R'M K Gray for the plaintiffs. MEGARRY J._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; and for the reasons that I have given I dismissed that motion. Counsel for the plaintifis thereupon moved ex parte for an injunction in the same terms pending an appeal by the plaintiffs. The county council had previously been bound by an undertaking in similar terms, but this came to an end with the dismissal of the motion, and counsel for the county council had no instructions to renew it or offer any other undertaking. He volunteered, however, that the next meeting of the appropriate body of the county council would not be until 28th March, and in the end counsel for the plaintiffs was content to seek an ex parte injunction only over 20th March, which he said would allow time for him to give notice of appeal and to serve notice of motion to extend the injunction. Ultimately I held that I should grant the injunction in this modified form. 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, primarily on the ground that I hadno jurisdiction togrant it, and that only the Court of Appeal could do so. Aftera brief discussion, adjourned thismotiontothenext day sothat the authorities could be consulted; and as a result I have heard substantial argument on the point. Although the county council's motion was ex parte, I indicated that I would hear what could be said on behalf of the plaintiffs; and in the end I had the advantage of an argument by junior counsel for the plaintiffs, 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. ‘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, at all events so long as my order remained unperfected. 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. But he said that when I had held (as I did) that the plaintiffs were not entitled to an injunction, I had no jurisdiction, or alternatively it would be quite wrong, to sit on appeal from myself, as it were, 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, By refusing an injunction on motion a judge showed that it was not right to preserve the status quo pend- ing trial or at all, and so showed that it was not right to preserve the status quo pend- ing appeal. He was functus officio quoad granting an injunction in that case. The settled practice, counsel asserted (without citing authority), was that if the motion for an injunction failed and the unsuccessful party sought an injunction pending an appeal against the refusal, 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. Counsel emphasised that apart from the plaintiffs’ expression of a probable intention to appeal, nothing new had happened since the refusal of the injunction which would make it proper to grant now, even in a temporary form, what had been refused then. 1 [1972] 3 All ER 384, [1973] 1 WLR 1213,450 All England Law Reports [1974] 2. All ER Counsel for the plaintiffs, on the other hand, dwelt on the merits of spced and convenience. 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, 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, 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. 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, and that in the present case, once the county council had decided the rival joint planning application, the subject-matter of the alleged agreement by the county council (namely, that the plaintiffs’ planning applications would not be de- cided otherwise than concurrently with the joint planning application) would be destroyed, leaving the plaintiffs to a complex and unsatisfactory claim in damages. The’ most recent case put before me was Orion Property Trust Ltd v Du Cane Court Ltd}, In this Pennycuick J said? that he found considerable difficulty in reconciling entirely what was said in the four cases which had been cited to him. All were de- cisions of the Court of 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’. In view of the judge's ample discussion of the cases, I do not propose to say more about them than seems necessary, merely adding my respectful concurrence with his com- ments, The four cases were all, I may say, cases of final and not interlocutory orders. Broadly, 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 Lindfords, on the one hand, and on the other hand the more substantial judgments in the Court of Appeal in Wilson v Church (No 2)° and Polini v Gray’. 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. The decisions, on the other hand, support the opposite principle. In the words of Pennycuick J in the Orion case’, 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, even though the action has wholly failed’. 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, a jurisdiction which is the subject of Rules of Court. I think I should say something about the two cases which appear to be opposed to the principle. In Wilson v Church? there had been a claim against trustees for moneys in their hands. Fry J dismissed it, and the plaintiffs thereupon entered an appeal and, without applying to the judge, moved the Court of Appeal for an injunction to restrain the defendants from parting with the trust funds pending the appeal. The Court of Appeal held thar it had jurisdiction and granted the injunction. Jessel MR is re- ported as delivering a two-sentence judgment with which Brett and Cotton LJJ simply concurred. The first sentence runs’: “The action having been absolutely dismissed by Mr. Justice Fry, he had no jurisdiction to stay the proceedings pending the appeal, and this application for an injunction was properly made to the Court of Appeal.’ [3962] 3 All ER 466, [1962] 1 WLR 1085 [1962] 3 All ER at 471, [1962] 1 WLR at 1090 (1879) 11 Ch D 576 (1881) 18 Ch D 394 (879) 12. Ch D 454 (3879) 12 Ch D 438, 31 ChD at 578 Noawaenn~ ChD _ Erinford Properties Ltd v Cheshire CC (Megarry J) 451 Before me, 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, indeed, seems to be the view of the editors of the Supreme Court Practice 1973!, where the case is cited as authority for the proposition that— “Where an action has been dismissed in the Court below, that Court has no jurisdiction, e.g., 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.” This repeats words in the Annual Practice 1962? to which Pennycuick J referred in the Orion case?. Ido not think that this is right. _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, so that just as under what was then RSC Ord 58, rr 16 and 17, and is now RSC Ord 59, rr 13 and 14, any application for a stay ought to be made in the first instance to the trial judge, so the application for the injunction ought to have been made initially to Fry J. ‘The answer to this was that no question of staying proceedings could arise, for the action had been dismissed and so there was nothing to stay. The rule requiring an application for a stay to be made in the first instance to the trial judge accordingly had no application, and the Court of Appeal could properly grant the injunction. In other words, I think Jessel MR was directing him- self not to what jurisdiction remained in a judge once he had given judgment, but to the nature of the particular application being made to the court. The point seems to be made somewhat clearer by the report of the same case in the Law Journal Reports’. That reports the argument of counsel that the application ‘was to stay proceedings pending appeal and ought to have been made to the court below, whereat Jessel MR saidé: ‘No one can say that this is an application to stay proceedings in the action. The action was dismissed. This is an original motion.” Counsel then argued that the case was not one for an injunction: and counsel on the other side were not called on. ‘The judgment of Jessel MR is then reported without the first sentence that appears in the Law Reports and that I have quoted, simply granting the injunction and advancing the hearing of the appeal. 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 Law Journal version? seems to me to be the more probable. That, however, does not take into account the other case, Otto v Lindfori”. What had happened there was that Bacon V-C had dismissed an action with costs. The defendant appealed, 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. When asked if he had applied to Bacon V-C, 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 the application must be made to the Court of Appeal. 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 Volume 1, p 856 Page 1693 [1962] 3 Al ER at 470, [1962] 1 WLR at 1089 (1879) 11 Ch D 576 48 LJCh 690 48 LJCh at 690 (3881) 18 Ch D 394 Nawaune452 All England Law Reports [1974] 2 All ER the order for costs) the application should be made initially to the trial judge. How- ever, Jessel MR began.his short judgment with these words!, referring to Wilson v Church? “That was a case of an entirely different description. The plaintiffs there were asking for an injunction to restrain the trustees from parting with the trust funds pending the appeal. That was not an application to stay'proceedings under the order appealed from, for that order did not give any directions for dealing with the funds, and the Court below having dismissed the action, had no juris- diction to grant such an injunction.’ These latter words, of course, plainly provide some support for the view that Wilson ¥ Churck? was concerned with the jurisdiction remaining in a judge who had dismissed an action. Furthermore, Cotton LJ said?: “L also was a party to the decision in Wilson v. Church, and I agree with the view taken of it by the Master of the Rolls.” On this, there are two things that I should say with the greatest respect. First, itis easy to see how a court which has had cited to it the words relating to juridiction which appear in the Law Reports version of Wilson v Church? might easily, when dealing briefly with a short application where the point for decision was quite different, refer to that case in the same kind of language: Wilson v Church? came into the mat- ter no more than being a case of an entirely different description which required to be distinguished. ‘The words in question in the Law Reports version of Wilson v Church are, of course, ‘no jurisdiction to stay the proceedings pending the appeal’, and these are not the same as ‘no jurisdiction to grant such an injunction’ that appear in Otto v Lindford’. Second, Otto v LindfordS and another decision of Jessel MR were subsequently explained and in some degree disapproved by the Court of Appeal in Cropper v Smith’. This dealt with the rules that applications to stay proceedings must be made in the first instance to the trial judge. Jessel MR had expressed the view that if the trial judge refused a stay, the application to the Court of Appeal must necessarily be a motion by way of appeal, and the Court of Appeal and the court below could not have co-ordinate jurisdiction. Brett MR and Cotton and Bowen L]J all held that this was not accurate, and that there was concurrent jurisdiction in the court below and in the Court of Appeal. Brett MR read® the whole of the judgment of Jessel MR in Otto v LindfordS and then said: “That is nothing more than rule 17’, that is, the then RSC Ord 58, r 17, requiring any application for a stay to be made to the trial judge in the first place; and Cotton LJ? expressed himself similarly. (Oddly enough, Bowen LJ} compared the Law Reports and Law Journal Reports versions of an earlier decision! in demonstrating that Jessel MR had misunderstood the effect of that earlier case.) I do not, of course, say that considerations such as these dispose of the phrase ‘had no jurisdiction to grant such an injunction’ in Otto v Lindford®, but they cannot add to the weight of a phrase which was admittedly not of the ratio, (1881) 18 Ch D at 394, 395 (1879) 11 Ch D 576 18 Ch D at 395 11 Ch Dat 578 18 Ch D at 395 18 Ch D 394 (1883) 24 Ch D 305 24 Ch D at 311 24 Ch D at 314 24 Ch D at 316 Cooper v Cooper (1876) 2. Ch D 492, 45 LJCh 667 BB eevouaunn~ ChD _ Erinford Properties Ltd v Cheshire CC (Megarry J) 453 As against that phrase, 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), and also the actual decision in the Orion case? itself. All of these point to a judge not being stripped of his jurisdiction as soon as he dismisses the proceedings before him. It is true that the motion before me is merely an inter locutory one, whereas the authorities discussed in the Orion case?, and the Orion case? itself, were all concerned with trials, or, in some cases, pending appeals from the Court of Appeal to the House of Lords. However, these considerations seem to me to make the case before mea fortiori, 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. Furthermore, it may be technically less difficult to contend that the Court of Appeal is functus officio when it has dis- missed an appeal and the loser wishes to appeal to the House of Lords than to contend thar 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, as contrasted with the former, the proceedings are still within the same court, the Supreme Court. Again, in the case before me no order dismissing the motion has yet been perfected, and until it has been it is open to this court to modify or even revoke the decision, ‘as may be considered proper: see Re Harrison's Share under a Settlement’. Yet again, an application for an injunction to restrain a successful defendant from acting on his success seems to constitute an original motion, 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 seems to me that on principle and on authority, despite the words of Jessel MR that I have quoted, I had jurisdiction to grant the injunction that I red. "Turn to the other way that counsel for the county council put his case, that of inconsistency: and as | indicated to him during the argument, that, rather than juris- diction, seemed to me to be his real case. Having held that it would be wrong to grant the plaintiffs an injunction, how can a judge, consistently with his judgment, hold that itis right to grant them a similar though more limited injunction? Counsel. for the county council did not challenge the decision in Orion’, but he distinguished it: the complicated facts of that case, I may say, are more fully set out in the report in the All England Law Reports. In that case, said counsel, the decision by the trial judge had been as to the ownership of certain shares, and the injunction granted pending appeal was merely to restrain the successful defendants from acting on their success pending the appeal. That was not a case in which an injunction had been sought in the action and refused, and the judge had then granted an injunction pending an appeal. Furthermore, in that case subsequent events had occurred (the defendant company had issued some new shares), whereas here there was no new event: the intimation of a probable intention to appeal was not such an event. 1 do not think that these contentions are sound. Counsel for the county council dis- claimed any contention that injunctions stood in a category by themselves, and said that if, for example, the plaintiff failed in a claim to have a receiver appointed, the judge could not appoint a receiver pending an appeal, and only the Court of Appeal could. The argument seemed in the end to come to the alleged inconsistency between granting, pending appeal, the selfsame relief that had been refused at the trial or on motion, On this argument, such a case should, it seems, be treated quite differently from the case of an inconsistency between a declaration or decision that A owns certain property and an injunction fettering A’s rights of ownership pending appeal, 3 (1879) 12. Ch D 438 2 (1879) 11 Ch D 576 3 [1962] 3 All ER 466, [1962] 1 WLR 3805 4 (1955) 1 All ER 185, [1955] Ch 270 5. [1962] 3 All BR 466, [1962] 1 WLR 1085454 All England Law Reports [1974] 2 All ER as by enjoining him from making any distribution of the property pending the appeal; the latter form of inconsistency was no bar to the judge granting the injunction. can see no real inconsistency in any of these cases. The questions that have to be decided on the two occasions are quite different. Putting it shortly, on a motion the question is whether the applicant has made out a sufficient case to have the res- pondent restrained pending the trial. On the trial, the questions whether the plaintiff has sufficiently proved his case. On the other hand, where the application is for an injunction pending an appeal, 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. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong, No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognise that his decision might be reversed, and that the comparative effects of granting or re- fusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted pending the trial is inconsistent, either logically or otherwise, with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction, or that by refusing an injunction pending the trial the judge becomes functus officio quoad granting any injunction at all. There may, of course, be many cases where it would be wrong to grant an injunc- tion pending appeal, as where any appeal would be frivolous, or to grant the injunc- tion would inflict greater hardship than it would avoid, and so on. But subject to that, the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church (No 2)!, where, speaking of an appeal from the Court of Appeal to the House of Lords, he said, ‘when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory’. That was the principle which Pennycuick J applied in the Orion case; and although the cases had not then been cited to me, it was on that principle, and not because I felt any real doubts about my judgment on the motion, that I granted counsel for the plaintifis the limited injunction pending appeal that he sought. This is not a case in which damages seem to me to be a suitable alternative. T accept, of course, that convenience is not everything, but I think that consider- able weight should be given to the consideration that any application for a stay of execution must be made initially to the trial judge. He, of course, knows all about the case and can deal promptly with the application. ‘The Court of Appeal will not be troubled with it unless one of the parties is dissatisfied with the decision of the judge, in which case the Court of Appeal will at least have whatever assistance is provided by knowing howthe judge dealtwith the application, Although the type of injunction that I have granted is not a stay of execution, 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, 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. Except where there is good reason to the contrary (and I can see none in this case), I would apply the convenience of the procedure for the one to the other. Accordingly, for these reasons the county council’s motion to discharge the injunction fails and the ex parte injunction stands, I decide nothing on whether it ought to be 1 (1879) 12 Ch D at 458 2 [1962] 3 All ER 466, [1962] 1 WLR 1085ChD Erinford Properties Ltd v Cheshire CC (Megarry J) 455 extended: that I leave for argument and any evidence that may be adduced if an extension is sought Ishould add this. Neither the Law Journal report of Wilson v Church! nor Cropper v Smith? was cited during argument, and I therefore considered whether before giv- ing judgment I ought to restore the case for further argument on those authorities. However, they merely seemed to confirm to some extent the view that I had already formed without their aid, and so in accordance with Re Lawrence's Will. Trusts? I have not sought further argument. However, if it is desired to make any submissions on this point I will of course hear them. Motion to discharge injunction dismissed. Solicitors: Sharpe, Pritchard & Co (for the county council); Hancock é Willis, agent for Ellis Moxon, Crewe (for the plaintiffs). RW Farrin Esq. Barrister. Reiterbund v Reiterbund FAMILY DIVISION BINER J 6th JANUARY, 18th FEBRUARY 1974 Divorce - Separation - Five year separation — Decree nisi ~ Refusal - Grave financial or other hardship ~ Loss of chance of acquiring benefit - Pension rights - Widow's pension - Loss of chance constituting hardship - Onus of proving hardship grave ~ Onus on wife of proving that discrepancy between amount of widow's pension and amount of alternative benefits sufficiently large to constitute grave hardship ~ Matrimonial Causes Act 1973, $ 5(3). Divorce ~ Separation ~ Five year separation ~ Decree nisi - Refusal ~ Grave financial or other hardship — Social security benefits — Relevance ~ Loss of chance of widow's pension ~ Right to social security benefits of similar amount to pension - Duty of husband to maintain wife irrelevant in situation where husband assumed to be dead — Entitlement to social security benefits to be taken into account ~ Matrimonial Causes Act 1973, § 5. ‘The parties married in 1942 and had two children born in 1943 and 1950. In 1956 the parties separated and never lived together again. The husband suffered from chronic bronchitis and was a registered disabled person. He was unable to work and received £1260 a fortnight from the Ministry of Social Security. He lived with his sister, con- tributing to the household expenses. The wife had for some time required psychiatric treatment and therefore could only do some form of sheltered work. She earned £1 a week working in a day-centre and was in receipt of supplementary benefits at the rate of £7-75 a week. Out of that sum she paid {4:55 to a private charity which looked j after her. It was unlikely that she would ever be able to earn her own living. The hus- band was 54 years of age and the wife 52. The husband petitioned for divorce relying on the fact that the parties had lived apart for a period of five years as provided in s 1(2) 1 (1879) 48 LJCh 690 2. (1883) 53 LICh 170 3 [1971] 3 All ER 433 at 447, 448, [1972] Ch 418 at 436, 437