There is no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole. The court discussed who had the benefit of cross undertakings given on interim injunctions applications, and referred to a note in the Supreme Court Practice and said: ‘These statements of principle justify, in my judgment, the proposition that (subject to any direction to the contrary a court may in a particular case give): (i) advantage can be taken of a cross-undertaking in damages by every defendant who was party to the action when the undertaking was granted; (ii) advantage cannot be taken of the cross-undertaking by persons who are not parties to the action, or, at least, do not become parties until after the order has been discharged.
That leaves outstanding the position regarding defendants who are joined as parties during the currency of the order. That state of affairs does not apply in the present case. I do not regard the correct answer as being clear from the decided cases, although I would, for my part, wish to extend the benefit of a cross-undertaking in damages to all defendants who became parties while the undertaking was in force.’ However: ‘There is, in my judgment, no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole.’
Judges:
Scott VC, Roch and Potter LJJ
Citations:
[1990] 2 QB 407, [1990] I LPr 772, [1990] FSR 381
Jurisdiction:
England and Wales
Cited by:
Reconsidered – Fitzgerald and Others v Williams and Others O’Regan and Others v Same CA 3-Jan-1996
Security for costs should not to be granted against an EC National in the absence of some particular difficulty. The Treaty required citizens of other states which were signatories of the convention. The importance of accurate evidence is . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
See Also – Berkeley Administration Inc v Mcclelland and Others CA 13-Aug-1996
Third Party who had been joined in after an injunction was discharged takes no benefit of cross undertaking. . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 28 April 2022; Ref: scu.180969