A recent English High Court decision has highlighted the risks of prematurely issuing applications for injunctive relief, a decision which will be of importance in all common law jurisdictions, including the Cayman Islands.
In WH Holding Ltd & West Ham United FC v E20 Stadium LLP, Mr Justice Snowden made an adverse costs order against the Premier League club despite it claiming that its application for injunctive relief had been successful.
The dispute centered on West Ham’s tenancy in the old Olympic Stadium in London which is governed by a concession agreement with the defendant, E20, pursuant to which E20 is responsible for providing stewarding and security personnel for matches played there. In practice, the operation of the Stadium on match days is carried out by an agent appointed by E20. Following crowd disturbances at the Stadium during a match in 2018, the Football Association charged West Ham with misconduct for failing to ensure that its spectators did not encroach onto the pitch area. Under the disciplinary process, West Ham were given just over a week to respond to the charge although they were entitled to request, and did subsequently request, an extension to that time period.
In the run up to the FA deadline, West Ham sought various information and comments from E20 on the charges. E20, through their lawyers, engaged with West Ham but evidently not to the club’s satisfaction. This culminated in an ultimatum to E20’s lawyers on a Friday afternoon threatening an application for injunctive relief the following Monday if satisfactory responses were not received within 3 hours. E20’s lawyers did not reply and the application was issued and first heard on the Monday with only West Ham in attendance.
At subsequent hearings, arguments were heard on the form of order to be made and eventually a consent order was made (in a vastly different form to that initially proffered) whereby E20 agreed to answer various questions to assist West Ham in meeting the FA charge.
However, on the issue of the costs of the injunction application, the Court held that West Ham should be responsible given its “trigger-happy” conduct.
Tellingly, the Judge commented
“…whilst understandably anxious about the impending FA Charge, West Ham did jump the gun with an unfocussed application for injunctive relief which it was then forced to amend very substantially to adopt the process reasonably suggested by E20”
The decision underlines the need for caution to be taken by a party before issuing an injunction application in circumstances where its evidence may be incomplete and the reliefs it seeks unclear.