Judgment
Title: | Charleton & anor -v- Scriven |
Neutral Citation: | [2019] IESC 28 |
Supreme Court Record Number: | 416/2014 |
High Court Record Number: | 2014 6345 P |
Date of Delivery: | 05/08/2019 |
Court: | Supreme Court |
Composition of Court: | Clarke C.J., O'Donnell Donal J., O'Malley Iseult J. |
Judgment by: | Clarke C.J. |
Status: | Approved |
Result: | Other |
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THE SUPREME COURT
Appeal No: 416/2014
Clarke C.J.
O’Donnell J.
O’Malley J.
Luke Charleton and Michael Cotter
Plaintiffs/Respondents
and
Gerard Scriven
Defendant/Appellant
Judgment of Mr. Justice Clarke, Chief Justice, delivered the 8th May, 2019
1. Introduction
1.1 At the core of this appeal is a technical issue about whether it is arguable that the plaintiffs/respondents (“the Receivers”) were not validly appointed on foot of a series of mortgages originally entered into between Bank of Scotland Plc (“the Bank”) and the defendant/appellant (“Mr. Scriven”).
1.2 The Bank purported to appoint the Receivers as joint receivers over eight separate residential properties which were the subject of the mortgage agreements concerned. Thereafter, following disputes about the collection of rent for the properties concerned, the Receivers brought an application seeking an interlocutory injunction from the High Court which, in substance, sought that they be allowed take over the properties which were the subject of the mortgages. As the properties had been let by Mr. Scriven, it may well be the case that in practice, the role of the Receivers was likely to be, at least initially, confined to the collection of rent.
1.3 The High Court granted the injunction sought (see the judgment of Keane J. – Charleton & anor. v. Scriven [2014] IEHC 415). Mr. Scriven appealed against that order to this Court. This appeal was one of those cases which were transferred to the Court of Appeal on the establishment of that Court but which have recently been returned to this Court as part of the attempt to assist the Court of Appeal with its backlog.
1.4 In essence, there are two issues of substance which arise on this appeal. The first concerns the standard to be applied in assessing the strength or otherwise of the case which the Receivers make. While it will be necessary to address this issue in more detail in due course, it is well settled that there are certain categories of injunction application which, at the interlocutory stage, require the plaintiff to establish a higher degree of likelihood of success than the “fair issue to be tried” standard applied in most interlocutory injunction applications. That issue is not decisive given that, irrespective of the standard to be applied, there is an issue as to whether the Receivers have met it. Obviously, however, it would be more difficult for the Receivers to meet the higher standard, if it is that which is properly to be applied.
1.5 So far as the strength of the Receivers’ case is concerned, it is necessary to consider the potential defences which might be open to Mr. Scriven for, in the particular circumstances of this case, an assessment of the strength of the Receivers’ case largely involves an assessment of the strength or otherwise of the defences which Mr. Scriven may be able to put up.
1.6 Mr. Scriven originally represented himself and had filed written submissions making a number of points of defence. However, by the time the case came to hearing, Mr. Scriven was represented and counsel who, while not abandoning any of the points made in the written submissions, quite properly concentrated on what was considered to be the strongest ground, that being the language used in the purported appointment of the Receivers. In substance, therefore, the question of the strength or otherwise of the Receivers’ case has to be assessed by reference to the basis on which it is argued on behalf of Mr. Scriven that the appointment of the Receivers was defective.
1.7 In order to understand those issues more fully, it is appropriate to turn first to the facts.
2. The Facts
2.1 In 2007, the Bank and Mr. Scriven had entered into two loan facility agreements on foot of which the Bank advanced more than €3.69m to Mr. Scriven. The loans advanced to Mr. Scriven were secured, at least in part, by charges over eight residential properties. Mr. Scriven accepted before the High Court that he had been in default in relation to those loans since 2009 and had not made any repayment on the loans since 2013.
2.2 On 26 May 2014, the Bank’s solicitors wrote to Mr. Scriven demanding immediate repayment of the sums owed by him under the loan facilities, and stated:-
“We also give you notice that, failing payment by you of the sums herein demanded forthwith, the Bank reserves the right without further notice to issue proceedings in the appropriate court or take such further action as it deems fit including the appointment of a receiver.”
2.3 On the 4th June 2014, the Receivers were appointed on foot of the deeds of charge as receivers over the eight charged properties.
2.4 Following their appointment, the Receivers engaged in correspondence with Mr. Scriven concerning their appointment as receivers over the eight charged properties. In the High Court, Keane J. summarised that correspondence as follows at paras. 11 and 12:-
“11. The plaintiffs initiated a correspondence with the defendant on the 5th June 2014, which prior to the issue of the motion at hand rested with the defendant’s letter of the 9th July 2014. In the course of that correspondence, the plaintiffs furnished the applicant with a copy of the deed appointing them in respect of each property and subsequently, at the defendant’s request, with a copy of the mortgage deed in relation to each. The plaintiffs requested the defendant to furnish them with details concerning the mortgaged properties to include copies of all leases, and details of the tenants and rental income in respect of each.
12. The defendant responded that he had been incorrectly notified of the appointment of the receivers and that he did not accept the validity of their appointment. The defendant has asserted that he is entitled to continue to exercise all of his rights as owner of each of the properties concerned, and that the receivers are not entitled to exercise any such rights, until –as the defendant puts it - he has validated their appointment. The defendant acknowledges that he has written to the tenants of each of the mortgaged properties to the effect that the receivers’ appointment is invalid and that the receivers are not, in consequence, entitled to collect rents or exercise any other rights in respect of any of those properties.”
2.5 On 2 July 2014, solicitors acting on behalf of the Receivers wrote to Mr. Scriven enclosing copies of the mortgage deeds in relation to each property, and stated:-
“Notwithstanding this we are instructed that you have persisted to make contact and correspond with the occupants of the Properties and have told the tenants that they are to pay the rents to you and not pay the rents to our clients. Please note that as and from their appointment our clients are the only persons legally entitled to deal with these properties. Our clients are the only parties entitled to receive the rent from the tenants of these properties.
Our clients explained to you that on their appointment they, as it were, stood in your shoes, in relation to dealing with the properties and that you ceased to have any legal entitlement of any nature to deal with the properties.
Accordingly we formally call on you to desist from any further interference or trespass and in particular to cease asking the tenants to pay rent to you.
If it comes to your clients notice that you have not ceased to interfere, proceedings including injunctive proceedings will immediately be issued against you without further notice and this letter will be produced to the Court in support of our application and further, our clients costs.”
2.6 The Receivers subsequently applied to the High Court seeking injunctive relief, which was granted on 22 August 2014. It will be necessary to return to the exact form of the relief sought and granted later in this judgment. However, given the focus in this case on the validity of the appointment of the Receivers, it is important first to set out the text of the relevant provisions both of the mortgage deeds and the appointment of the Receivers.
3. The Documentation
3.1 The same wording is used in each of the mortgage deeds. Clause 1 of each mortgage deed is the interpretation section. That section provides:-
“‘Receiver’ shall have the meaning ascribed to it in Clause 8.1”
3.2 Clause 8.1 of each deed provides in relevant part:-
“At any time after the power of sale has become exercisable whether or not the bank has entered into or taken possession of the Secured Assets or at any time after the Mortgagor so requests the Bank may from time to time appoint under seal or under hand of a duly authorised officer or employee of the Bank any person or persons to be receiver and manager or receivers and managers (herein called ‘Receiver’ which expression shall where the context so admits include the plural and any substituted receiver and manager or receivers and managers)…”
3.3 The appointment of the Receivers states as follows:-
“In pursuance of the powers contained in a Mortgage and Charge … made between Gerard Scriven and Bank of Scotland (Ireland) Limited, Bank of Scotland plc does HEREBY APPOINT LUKE CHARLETON AND MICHAEL COTTER of EY, EY Building, Harcourt Centre, Harcourt Street, Dublin 2 to be the RECEIVERS of the whole of the property and assets referred to, comprised in, mortgaged and charged by the Mortgage including the property described in the Schedule hereto, to enter upon and take possession of the same and in the manner specified in the Mortgage and such receivers shall have and be entitled to exercise the powers conferred on them by the Mortgage and by the law.” (Emphasis in original)
3.4 Again, the wording of the appointments, insofar as relevant to the issues arising on this appeal, is the same in each instance.
3.5 It will be seen, therefore, that the mortgage deeds provide for the appointment of a “receiver and manager”, while the appointment of the Receivers only refers to their appointment being as “receivers” rather than as “receivers and managers”. In essence, this is the principal point relied on by Mr. Scriven for suggesting that the appointment of the Receivers is invalid or, more correctly, that it is sufficiently arguable that the Receivers were invalidly appointed on that basis so as to render the Receivers’ case at this interlocutory stage such that it can properly be described as weak. Just how weak it would need to be in order for it to be inappropriate to grant an interlocutory injunction would, of course, depend on the proper standard to be applied. It seems appropriate, therefore, to turn first to the question of the standard to be applied.
4. The Standard to be Applied
4.1 The most detailed recent assessment by this Court of the criteria to be applied in relation to the grant or refusal of interlocutory injunctions is to be found in the judgment in Okunade v. Minister for Justice, Equality and Law Reform [2012] IESC 49, [2012] 3 I.R. 152. While it is the case that Okunade had a particular focus on the criteria to be applied in respect of interlocutory injunctions or similar orders in a public law context, it is also clear that much of the analysis in the judgment in that case applies equally to private law injunction proceedings. The overall approach of the judgment is to analyse the proper basis for the grant of interlocutory injunctions (or similar orders) at an overall level and then seek to apply those principles in the particular context of public law issues.
4.2 As was made clear in Okunade, the overall approach which a court must take is to act to minimise the risk of injustice. In my judgment in that case, I stated as follows at para. 9.5:-
“In both cases the problem stems from the fact that the court is being asked, on the basis of limited information and limited argument, to put in place a temporary regime pending trial in the full knowledge that the court does not know what the result of the trial will be. It seems to me that, recognising that a risk of injustice is an inevitability in those circumstances, the underlying principle must be that the court should put in place a regime which minimises the overall risk of injustice. It seems to me that the underlying principle remains the same whether the court is considering placing a stay on a measure or granting an injunction. Indeed, although it is unnecessary to go into detail for the purposes of this case, it seems to me that a like general principle underlies the approach of the court in many other types of cases where the same broad problem arises. In many situations it is necessary to decide what is to happen in the intervening period pending a trial or other determination (or indeed an appeal) when, by definition, it is not possible to decide what the ultimate outcome will be. All such cases involve the risk that, when the dust has settled, it will be seen that some person or body has suffered either by the intervention of the court or, equally, by its non intervention. However the only way to remove that risk of injustice would be by deciding the case, issue or appeal immediately. The whole problem is that that process takes time. In those circumstances I do not believe that the test as to whether the court should intervene pending trial depends on whether the temporary measure sought is described as a stay or as an injunction or, indeed, as any other form of order which might arise on the special circumstances of an individual case. The court must, in all cases, act so as to minimise the risk of injustice.”
4.3 It should also be noted that in my judgment in Okunade, I made the following comment concerning the test to be applied in relation to certain applications for interlocutory injunctions at para. 9.16:-
“…It is, therefore, hardly surprising that, in such cases, where the result of the interlocutory application will either completely, or significantly, decide the case, the courts have felt it necessary to impose a higher standard before an injunction can be granted (normally the Maha Lingam standard). That variation from the pure Campus Oil test can be seen as nonetheless still coming within the general principle of attempting to fashion an order which runs the least risk of injustice for if the grant or refusal of an interlocutory order will go a long way towards deciding the case then the risk of an injustice is even greater and the court requires a greater degree of assurance before intervening.”
4.4 The “Maha Lingam standard” referred to in that passage is as set out by Fennelly J. in Maha Lingam v. Health Service Executive [2005] IESC 89, where he stated:-
“…[I]t is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action.”
4.5 There can be little doubt, therefore, that the strength of a plaintiff’s case can be required to be assessed against a higher standard in certain categories of case, precisely because the grant of an injunction in such cases, in circumstances where the plaintiff ultimately failed, would run a greater risk of more serious injustice. There is equally no doubt that the jurisprudence regards a mandatory injunction as coming within the category of case to which that higher standard applies.
4.6 However, there is also clear authority for the proposition that the assessment of whether an injunction can properly be said to be mandatory for those purposes is a matter of substance rather than one of form. Indeed, this is clear from the judgment of Fennelly J. in Maha Lingam, where he stated:-
“…[T]he implication of an application of the present sort is that in substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is in effect mandatory.” (Emphasis added)
4.7 This substance over form approach can also be seen in, for example, my judgment in Bergin v. Galway Clinic Doughiska Ltd. [2007] IEHC 386, [2008] 2 I.R. 205 and the judgment of Irvine J. in Stoskus v. Goode Concrete Limited [2007] IEHC 432.
4.8 The reason why a higher standard is applied is not because of some technicality but because of the greater risk of injustice which I have sought to identify. But that greater risk is a function of the substance of the order sought and the consequences which it might have for an individual who became bound to obey the interlocutory injunction but ultimately succeeded. It is clear that, at least in general terms, requiring someone to do something which, it may ultimately transpire, they were not required to do may give rise to a greater risk of injustice than simply requiring someone to refrain from doing something which they may ultimately be found to be entitled to do. But that question is dependent on an analysis of the substance of the effect of the injunction if granted, rather than the language used in its terms. Against that backdrop, it is necessary to turn to the injunction sought and obtained on the facts of this case.
5. The Injunction Appealed Against
5.1 In the High Court, the Receivers sought and were granted injunctive relief in the following terms:-
2. The Defendant whether by himself, his servants or agents be restrained from entering upon or otherwise attending at the Mortgaged Properties;
3. The Defendant, his servants or agents be restrained from preventing, impeding or obstructing the Plaintiffs, their servants and agents from entering into, taking possession of, getting in and collecting the Mortgaged Properties and any rents or other income payable in respect thereof;
4. The Defendant, his servants and agents be restrained from interfering with the functions and office of the Plaintiffs as joint receivers of the property to which they have been appointed by the eight deeds of appointment (each referring to a Mortgaged Property) made by Bank of Scotland plc on 4 June 2014 and accepted by the Plaintiffs on the same date.
5. The Plaintiffs be at liberty, directly or by their solicitors, to notify the making of the foregoing orders to the occupant of the mortgaged properties by telephone, email and/or post.”
5.2 In attempting to characterise an injunction in those terms, it is important to keep in mind that the position, at least at the time when the injunction was granted and, it would appear, up until the hearing before this Court, was that the relevant properties were let. It followed that the principal substance, whatever about the form, of what lay behind the injunction sought was that the Receivers would be entitled to collect the rent without any interference from Mr. Scriven.
5.3 It is clear from the facts referred to earlier that the event which precipitated the application for the interlocutory injunction in these proceedings in the first place was the attempt by Mr. Scriven to direct that the rents due from the various properties should be paid to him rather than to the Receivers. It is correct to state that some of the reliefs claimed, such as those requiring Mr. Scriven to hand over possession of the properties in question and other ancillary matters, might reasonably characterised as being more mandatory than prohibitory in character. For the purposes of the assessment of whether it is appropriate to grant or refuse interlocutory relief in this case, it seems to me that it is appropriate to characterise much of the relief sought, being those aspects of the relief which involved restraining Mr. Scriven from interfering with the collection with the rent by the Receivers, as being essentially prohibitory in nature, although it may well be appropriate to regard some of the relief claimed (albeit relief which seemed to be of little practical relevance in the context of the case) as being of a mandatory character.
5.4 Against that backdrop, it is necessary to assess the strength or otherwise of the case which the Receivers seek to make.
6. The Strength of the Receivers’ Case
6.1 As noted earlier, the essential point on which particular reliance was placed on behalf of Mr. Scriven was the argument that there is a difference between a “receiver and manager” and a “receiver”. On that basis, it is said that the appointment of the Receivers as simply “receivers” as opposed to as “receivers and managers” is arguably an invalid appointment such that it would be properly concluded that the Receivers did not have a sufficiently strong case to warrant the grant of an injunction which, it was argued, was essentially mandatory in nature.
6.2 Subsequent to the decision in this case, a similar argument came before the High Court in McCarthy v. Moroney & Anor [2018] IEHC 379. The trial judge in that case had to assess the strength or otherwise of an almost identical argument relating to identically worded documentation.
6.3 In his judgment in that case, McDonald J. considered the previous judgment of Gilligan J. in The Merrow Limited v Bank of Scotland [2013] IEHC 130, [2013] I.L.R.M. 388, which stressed the importance of observing any formalities provided for in a debenture or deed of mortgage when it comes to the appointment of a receiver. McDonald J. also referred to other authorities to the same effect.
6.4 On that basis, McDonald J. noted that the entitlement to appoint a receiver under deeds identical to those involved in this case requires that such a person be appointed as a “receiver and manager”. McDonald J. went on to assess the strength of the case which could be made for the validity of the appointment of the receiver in the circumstances before him, having regard to the fact that all formalities for the appointment of a receiver must be complied with and that the words used in the documentation appointing the receiver in that case referred, as here, to a “receiver” as opposed to a “receiver and manager”.
6.5 Ultimately, McDonald J. concluded that the receiver in the proceedings before him would “have an uphill struggle in persuading the Court at trial that he has been validly appointed”.
6.6 It is fair to say that McDonald J. appeared to have been concerned that this aspect of the matter was not argued as thoroughly as he might have liked. In that context, he said at para. 157:-
“I was not referred to any other authorities in this context other than the decision of Gilligan J. While the decision of Gilligan J. was dealt with extensively in the oral and written submissions by Mr. Moroney, the decision was not canvassed extensively in the submissions made on behalf of Mr. McCarthy. The oral submissions on behalf of Mr. McCarthy on this issue run from p. 103 to p. 105 of the transcript on Day 3.”
In the context of that passage, it should be noted that Mr. McCarthy was the receiver seeking an interlocutory injunction, such that the limited argument referred to by McDonald J. relates specifically to arguments on this point addressed by the receiver.
6.7 However, it seems to me that, in seeking to assess the strength of the Receivers’ case with the benefit of full argument in these proceedings, it is important to have regard to the fact that the mortgage deeds themselves defined the persons who were to be appointed as “receivers and managers” as the “receivers”. It is true that that definition was stated to be for the purposes of the mortgage deeds themselves. But it is at least arguable that the use of the term “receiver” in documents which are contemplated by the mortgage deeds themselves (being the documents whereby the Receivers were appointed) would carry that same definition. In other words, it is arguable that the appointment of the Receivers in the form in which it occurred in this case was, as a matter of construction of the documents concerned, an appointment as both receivers and managers, having regard to the way in which the term “receiver” was defined in the mortgage deeds themselves.
6.8 Insofar as the other principal issue which arises in this case is concerned, being the question of the strength of the case which the Receivers need to establish, it is important to note that in McCarthy, it was conceded by counsel for the receiver in that case that, while negatively worded, what was sought was an injunction which was in substance mandatory in nature, it being a requirement to hand over possession of the property the subject of the deed in that case to the receiver. There was thus no question for McDonald J. as to the standard to be applied. However, the situation is different here.
6.9 On the basis of the analysis carried out above, there clearly is, at a minimum, a fair issue to be tried between the parties as to whether the Receivers were properly appointed. Having regard to the fact that I have already sought to characterise that aspect of the relief which the Receivers sought, which concerned prohibiting Mr. Scriven from interfering with the orderly collection of rent from the properties, as being essentially prohibitory in character, it follows that, at least so far as that relief is concerned, it will be necessary to go on to consider the balance of convenience.
6.10 However, in my view the arguments concerning the validity of the appointment of the Receivers are sufficiently complex (for the reasons analysed by McDonald J. in McCarthy) that it would be difficult to suggest that a sufficiently strong case could be made out to warrant the grant of an injunction which was essentially mandatory in character. I would, therefore, distinguish between the reliefs sought which simply seek to retain the position that the Receivers are entitled to collect the rent, on the one hand, from any relief which might be designed to allow the Receivers to move on to selling the property on the other.
6.11 So far as the balance of convenience is concerned, it seems to me that where all that is involved is the collection of rent, the balance favours those sums being paid to the Receivers and retained by them, pending the resolution of the proceedings. In those circumstances, Mr. Scriven is protected in the event that the Receivers ultimately lose the case because the monies can then be paid over to him. I would, in those circumstances, hold that an interlocutory injunction was appropriate, but only one which was sufficient to ensure that the monies were paid over to and retained by the Receivers pending the trial of the action. I propose that the parties be heard further on the precise form of any such order.
6.12 Indeed, I would go further and suggest that, having regard to the underlying principle of attempting to fashion an order which runs the least risk of injustice, there may very well be an important distinction to be made in receivership cases between situations where the receivers concerned simply intend to maintain the situation pending a trial and ones where the substance of the interlocutory order sought is one designed to, in practice, bring the proceedings to an end. There is considerable logic in the view that, for example, a receiver who wished to obtain possession of residential property or a family farm so that it could be sold would need to make out a strong arguable case for it to be appropriate, having regard to the greatest risk of injustice test, to allow such an order to be made. On the other hand, where the matters are essentially financial or where there are strong grounds for believing that a receiver is necessary to ensure that property is properly managed and maintained pending a trial, very different considerations may apply.
6.13 It is important to emphasise that these observations only arise in circumstances where there is an issue of any substance concerning the validity of the appointment and powers of receivers. Where no real case of any substance is made by a defendant which puts forward a credible basis for suggesting either that receivers were not validly appointed or that receivers, although validly appointed, are seeking to exercise powers which they do not have, then it will not matter whether any interlocutory injunctive relief which the relevant receivers seek can properly be characterised as respectively mandatory or prohibitory, for there will be a more than adequate basis for suggesting that a strong case has been made out. The potential for a distinction between relief which is essentially mandatory, on the one hand, and that which is prohibitory, on the other, arises where there is at least some significant defence put forward which the Court assesses might arguably provide a basis for suggesting that the receivers might fail at trial. In such circumstances, it will be necessary to assess the strength of the defence put up so as to, in turn, determine whether the receivers’ case can be characterised as sufficiently strong to warrant the grant of mandatory relief or whether it may only be possible to say that the receivers’ case gives rise to a fair issue to be tried, where only such part of the relief claimed as can properly be described as prohibitory should be granted.
6.14 However, it may also be important to have regard to the fact that it is appropriate for a court, in fashioning an appropriate order at an interlocutory stage, to attempt to put in place a regime pending trial which runs the least risk of injustice, having regard to the uncertainty as to what the ultimate result of the trial may be (again, see Okunade). This may involve the Court looking at the practical situation on the ground and attempting to determine the course of action which minimises the risk of injustice. As already noted, on the facts of this case the reality is that, in the circumstances which had emerged by the time the interlocutory injunction was heard, the true practical nature of the relief sought was to ensure that the rents from the properties were paid to the Receivers rather than to Mr. Scriven. In that context, it is worth noting that it was suggested at the hearing of the appeal before this Court that, for various technical reasons, matters on the ground had not, despite the length of tine which had passed, moved on to a situation where sale was contemplated. That fact is a matter to which I will shortly return.
6.15 However, for the purposes of this judgment it is sufficient to state that the main practical relief claimed, being that which is designed to secure the payment of rent to the Receivers, was essentially prohibitory in character, in circumstances where there is at least a fair issue to be tried in favour of the proposition that the Receivers were validly appointed and where the balance of convenience would favour the rent continuing to be collected by them without interference by Mr. Scriven. Before concluding this judgment, I think it is appropriate to make one further observation.
7. An Observation
7.1 It is unfortunate that such a long time has elapsed since the grant of the interlocutory injunction in this case, without the substantive proceedings being brought on for hearing. Interlocutory injunctions should not be treated as a means of attempting, in practice, to obtain a summary judgment. They are designed to do what they say, that is, to hold the situation until there can be a full trial. While there will inevitably be some cases where the result of an interlocutory injunction may, in practical terms, bring the proceedings to an end, it remains the case that there is an obligation on any party which has obtained an interlocutory injunction not to rest on their laurels, but to bring the matter on for full hearing. If the defendant does not co-operate, then any appropriate procedural measures may be adopted, either to have the proceedings finally determined by default or to ensure that they come to trial in a timely way.
7.2 This Court does not have sufficient information to form a view as to where the fault lies for these proceedings not having been finally determined, although it is clear that with even reasonable diligence, this case could now be well finalised, as a result of which the question of whether or not there should be interlocutory orders pending a full hearing would have become irrelevant. However, in a case where it could be shown that a plaintiff who had obtained a beneficial interlocutory injunction had not moved with reasonable expedition thereafter to bring the matter on for trial, it may well be open to, and appropriate for, a court to consider whether that party should retain the benefit of what was clearly intended to be a temporary order for a prolonged period of time.
7.3 It is, of course, the case that this appeal has, regrettably and through no fault of the parties, taken a long time to come on for hearing. Be that as it may, it remains the case that, as noted earlier, the Receivers do not yet seem to be in an immediate position of requiring to sell the properties. Having regard to the fact that it would have been possible to have had a full trial of this matter well before now so that the question of the technical argument as to the validity of the appointment of the Receivers could have been finally resolved, it would, in any event, be inappropriate at this stage to make an order which would have the effect of allowing the relevant properties to be sold without a final determination of the legal issues which have arisen as to the validity of the appointment of the Receivers.
7.4 Finally, I would observe that the fact that there may be an appeal against the grant of an interlocutory injunction should not be regarded as a legitimate basis for the parties should not be regarded as a legitimate basis for the parties’ failure to progress the substantive proceedings to trial . The issues are separate issues. As this judgment demonstrates, a range of factors, such as the strength of the case and the balance of convenience, may come into play in considering whether to grant or refuse an interlocutory injunction and, indeed, if one be granted the terms thereof. But those issues are not necessarily relevant at a final trial which makes a determination on a permanent basis of the legal rights and obligations of the parties. Such a trial is the proper means for such final determination and parties should progress to it in a timely fashion, whether or not an interlocutory injunction has been sought and, if sought, whether or not there is an appeal against the result of the interlocutory hearing.
8. Conclusions
8.1 For the reasons set out in detail in this judgment, I have come to the view that it is appropriate to distinguish between those aspects of the interlocutory reliefs sought which concern the entitlement of the Receivers to have the rent on the properties which are the subject matter of these proceedings paid over to them without interference by Mr. Scriven, on the one hand, and some of the other reliefs claimed and granted by the High Court, on the other. It is clear that much of those ancillary reliefs were of little practical benefit in all the circumstances of this case, for all of the properties were rented out. In those circumstances, and in the absence of a move to sell the properties, the substance of the Receivers’ practical entitlement was to ensure that the rent was paid to them.
8.2 I have indicated the reasons why I think it is appropriate to characterise those aspects of the relief which preserve the payment of rent to the Receivers as being prohibitory rather than mandatory in character and, having regard to my finding that there is a fair case to be tried, I am satisfied to uphold the decision of the High Court to grant relief along those lines.
8.3 However, somewhat different considerations apply in respect of the additional relief claimed, partly because it is appropriate to characterise that relief as mandatory, and thus requiring a strong case to be established, and also because, in the circumstances now prevailing, it would not be appropriate to allow for orders which would have the effect of permitting these properties to be sold without a full trial.
8.4 In those circumstances, I would propose that counsel be heard further on the precise orders which should be confirmed by this Court, being those orders which are necessary to ensure that the rents are paid to the Receivers without interference by Mr. Scriven.