On an interlocutory application by the claimant for relief in respect of alleged infringement of trademark and passing off the defendant gave undertakings until judgment or further order. Shortly thereafter the Court of Appeal in another case upheld the validity of a defence to the action which had been open to the defendants at the time of the application. The defendants thereupon applied for the discharge of an injunction, relying on the Court of Appeal’s decision and filed evidence to establish that defence.
Held: The court refused to discharge the injunction. The court treated the consent order as having contractual force: ‘In my judgment, an order or undertaking to the court expressed to be until further order by implication gives a right to the party bound by the order or undertaking to apply to the court to have the order or undertaking discharged or modified if good grounds for doing so are shown.’
Buckley LJ said: ‘Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.’
Judges:
Buckley LJ
Citations:
[1981] 1 WLR 485, [1981] 1 All ER 745
Jurisdiction:
England and Wales
Cited by:
Cited – Collins Stewart Ltd and Another v The Financial Times Ltd QBD 20-Oct-2004
The claimants sought damages for defamation. The claimed that the article had caused very substantial losses (andpound;230 million) to them by affecting their market capitalisation value. The defendant sought to strike out that part of the claim. . .
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Cited – Thevarajah v Riordan and Others SC 16-Dec-2015
The defendants had failed to comply with an ‘unless’ order requiring disclosure, and had been first debarred from defending the cases as to liability. They applied to a second judge who granted relief from sanctions after new solicitors had complied . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 09 May 2022; Ref: scu.220037