England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2 Friday, 4th May 2001

Friday, 4th May 2001

1. LORD JUSTICE LONGMORE: This is an application for permission to appeal brought by Mr Ayobiojo against the decision of Sullivan J not to grant him an interim mandatory injunction and also in relation to costs.
2. The matter arises in this way. Mr Ayobiojo wished to register a domain name and a web site hosting service with the defendants Easyspace, and that is what he did. However an unfortunate dispute arose about one of the payments that it was necessary to make and a cheque bounced and the defendants, rightly or wrongly, said that they had to charge an administration fee of £100 in order to deal with the consequences of the bounced cheque, and that, unless he paid the £100, they were entitled to close down the domain which had been registered. In fact the matter is somewhat more complex because Mr Ayobiojo has explained to me that he has a number of domains registered and that he has four accounts with Easyspace. They have now closed all those accounts down.
3. All that happened in the summer of last year. Mr Ayobiojo complains that the defendants were not entitled to do what they did, and he has issued proceedings against them, and those proceedings are pending and will no doubt come to a conclusion. He also, however, in December of last year went before Sullivan J and asked for an interim mandatory order as follows:

"1. The Respondent must, within an hour of receipt of this Order, restore the Plaintiff's account and domains deactivated by the defendant on or around 21st June 2000.

2. That the said account and domains of the Plaintiff must be restored to their full functioning mode and supported by the Defendant in proper and normal manner.

3. Further, that the Respondent must maintain and service the said account of the Applicant in the same manner as it does the account of its regular customers having similar accounts with the Respondent."

4. It is perhaps unfortunate that these proceedings have become necessary over what was originally a charge of a hundred pounds. The defendants, Easyspace, instructed their solicitors to deal with the claim for an injunction and Messrs Theodore Goddard wrote to Mr Ayobiojo on 21st December 2000 in these terms:

"However, given that your dispute with our client is essentially over the sum of £100, it is our view and that of our client that in these circumstances a contested hearing would be unnecessary, inappropriate and a waste of judicial time and of costs.

Accordingly, without prejudice to its defence of your claim and any facts or matters or points of law which may in future be relied upon in relation thereto, and its right to take whatever action it deems appropriate in relation to accounts of customers whose cheques are dishonoured, our client is prepared until trial or further order to do the things you ask for in your Application Notice issued 18 December 2000, namely:..." [ 1, 2 and 3, as per the order which was sought]..

5. Mr Ayobiojo on receipt of that letter said well, that was fine as far as it went but would they please also undertake not to disconnect him again. Theodore Goddard would not give that extra undertaking. Therefore the matter did proceed before Sullivan J. Sullivan J declined to grant the interim mandatory order but did make clear that of course was without any prejudice to whatever relief would be sought at the trial of the action. He explained to Mr Ayobiojo that it was inappropriate to give mandatory interim orders on short notice well after disputes had started, there being a time lapse in this case of six months or so.
6. Mr Ayobiojo said that he had been in bad health and had not had access to proper advice. The judge did not regard those matters, although of course being sympathetic to Mr Ayobiojo in relation to his health, as being reasons why the ordinary principles as to interim mandatory orders should not be followed and he declined to grant the injunction.
7. The question now for me is whether there is any prospect of this Court now allowing an appeal from that order of the learned judge and granting Mr Ayobiojo the interim mandatory order that he seeks. I regret to say that there is no such prospect of the Court of Appeal granting such order, and it would not therefore be right, or indeed be helpful to Mr Ayobiojo, for me to grant him permission to appeal in respect of that dismissal by the judge of his application. The learned judge was entirely right on ordinary principles to refuse the application, although as he helpfully pointed out, that would not have any effect on the actual proceedings in which Mr Ayobiojo is free to claim whatever damages he is entitled to, and if the Court is persuaded that the actions of Easyspace were wrong, to ask the Court for a final injunction as opposed to an injunction pending trial in the form which he seeks. One cannot, of course, predict the ultimate outcome of any such application.
8. Mr Ayobiojo has a second point, namely that it is very unfair that he should have to pay the costs of the application before the judge which the defendants are now saying amount to about £7,000. The amount claimed by way of costs makes it difficult not to be sympathetic to Mr Ayobiojo, but the question is whether there is any prospect of the Court of Appeal reversing that order as to costs, since I read his application as being an application for permission to appeal in relation to that order for costs. I regret to have to come to the conclusion that there is no prospect of the Court of Appeal changing that order as to costs because in the first place this Court does not interfere with decisions about costs made by first instance judges except in very exceptional circumstances, such exceptional circumstances being at least that the judge was plainly wrong, and, secondly, the fact is that the learned judge here was plainly right because the defendants' solicitors had written the open letter which I have referred to. They did offer everything that Mr Ayobiojo asked for by way of relief and Mr Ayobiojo wanted the further undertaking that whatever happened in the future they would not discontinue his services again. Not surprisingly, the defendants could not give that undertaking because they did not know what would happen in the future. But the truth is that that letter gave all that Mr Ayobiojo was asking for at that time, although as it turned out the judge said he was not entitled to ask for that at the time. Therefore I must refuse both applications.
9. I should mention that Mr Ayobiojo did at one stage make an application for the matter to be adjourned because he did not agree with the solicitors' note of what occurred in front of the judge. There was no formal judgment in the sense that I am giving a formal judgment now, because the learned judge made claim his reasons for refusing the application in the course of argument, but it is the duty of any professional attender at Court to make a note of the argument which leads to any decision of the judge and of that decision. I am satisfied that the note made by the solicitors in pursuance of their duty to make a record is at any rate roughly correct. I was able to have some discussion with Mr Ayobiojo, who of course made the point that there were details of it which he did not agree with, but it does seem to me that it does record the reasons why the judge did refuse the application.
10. It seems to me that, whether or not the note correctly recorded what the judge said, those reasons were the right reasons and are likely to be the reasons which appealed to the judge in coming to his conclusion. For the reasons I have given these applications will have to be dismissed.
(Application for permission to appeal refused; permission to appeal refused)