An action was brought against three defendants, Matthews, Lamplough and the New Brunswick Trading Company of London, to restrain the company from confirming in general meeting certain agreements between the company and Matthews and Lamplough. An interim injunction was granted against Matthews and the company. Matthews asked for the usual undertaking in damages, to which the plaintiff’s counsel replied that it would of course be given. Lamplough had not been served and did not appear. When the order was drawn up, the undertaking it contained was confined to damages sustained by the company, and it was passed and entered in this form. Matthews and Lamplough appealed, asking that the undertaking might be extended to damages sustained by them respectively.
Held: Since Matthews had applied for an undertaking, which had in fact been given, the order was wrong in not extending the undertaking to damages sustained by him and could be corrected. Indeed that correction could have been made by the first instance judge under the slip rule; and did not require an appeal. However, the same did not go for Lamplough, who had not applied for an undertaking and not received one.
Cotton LJ: ‘As regards Lamplough, I am of opinion that his appeal fails; for we cannot impose on the Plaintiff any undertaking which he has not given. If a defendant applies for an undertaking, the plaintiff may decline to take any order. The Court only makes the undertaking a condition of granting an injunction; if the plaintiff refuses to give it the Court can refuse the injunction, but it cannot compel the plaintiff to give an undertaking. As a general rule, I think that when an injunction is granted the undertaking as to damages ought not to be confined to the persons restrained. In Pemberton on Decrees, it is said: ‘The undertaking applies to all the Defendants, although one or more only may be restrained.’ Mr. Pemberton does not refer to any authority for this; but I consider it to be a correct statement of the practice.’
Lindley LJ said: ‘The cases of the two Appellants are distinguishable. Matthews asked for an undertaking and got it. An undertaking is the price of an injunction, and if a man gets an injunction he must pay the price. Lamplough did not ask for an undertaking, and for anything we can tell, if he had done so the Plaintiff would have declined to take the injunction. I think, therefore, that the undertaking can only be extended to Matthews.’
Lindley LJ, Cotton LJ, Lopes LJ
(1890) 44 Ch D 249
England and Wales
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.231212
