30th Mar 2026 | Articles & Newsletters
On 25 March 2026, Mr Justice Choudhury handed down an ex tempore judgment granting Palms Hotel London Ltd (“Palms”) a prohibitory injunction restraining Mr David Morbin from entering the hotel and disposing of various items already removed from there.
Importantly, the court also departed from the usual order that costs of the interim injunction application be reserved. Instead, costs were awarded to Palms on the basis that Mr Morbin had completely failed to engage with the proceedings.
This decision is significant and the first time in which the High Court has recognised that total non-engagement with an interim injunction application may constitute a “special factor” justifying an immediate costs order.
Palms is a luxury hotel in Hornchurch, comprising 149 rooms, multiple banqueting venues, and recently refurbished restaurant space with capacity for up to 280 guests. Between 25 May 2025 to 23 February 2026, Palms granted a licence to Boka by Palms Ltd (“Boka”) to operate a steakhouse and Mediterranean restaurant within the hotel. Palms granted the licence to the restaurant space in a fully furnished state.
Until his recent resignation, Mr Morbin acted as Boka’s managing director, responsible for day-to-day operations and financial management. On 23 February 2026, Mr Morbin informed staff that Boka had ceased trading. On the same date, following demands for outstanding licence fees, Palms terminated the licence agreement and expressly prohibited Mr Morbin and any representative of Boka from entering the restaurant without prior consent.
Mr Morbin is alleged to have removed items of significant value from the premises on at least three recent occasions, including a till containing several thousand pounds. On 26 February 2026, in particular, he and his associates removed large items from the restaurant notwithstanding the termination three days prior and the presence of warning signage. These events were all captured on CCTV and reported to the Metropolitan Police.
On 13 March 2026, Palms issued a without notice application for an interim injunction seeking to restrain Mr Morbin from amongst other things:
The application came before Ms Justice Obi on 17 March 2026 who granted interim relief and permitted alternative service by email and at a company address linked to Mr Morbin. As the application was made prior to the issue of a claim, Palms was also ordered to issue proceedings forthwith. A claim has since been issued for trespass and conversion under the Torts (Interference with Goods) Act 1977.
At the return date on 25 March 2026, Mr Justice Choudhury continued the injunction, finding that Palms satisfied all three limbs of the American Cyanamid test:
On adequacy of damages, the court emphasised that Palms sought to protect proprietary rights in land, which are valued for non-economic reasons. Damages were therefore unlikely to provide an adequate remedy to prevent infringement with land and would, in any event, be difficult to quantify.
The key development arose in relation to costs. Evidence before the court showed that Palms had invited Mr Morbin to provide undertakings prior to issuing the without notice application; he failed to do so. He also failed to respond to correspondence following Ms Justice Obi’s order and did not attend the return date or explain his non-attendance.
In those circumstances, Mr Justice Choudhury held that Mr Morbin’s complete non-engagement with court proceedings constituted a “special factor” justifying an immediate payment of costs. He observed that a respondent would ordinarily be expected to engage with serious allegations made at a without notice stage, or at least to explain any non-attendance. Total inaction, he noted, suggests a lack of respect for the court process and is highly unusual in the face of such allegations.
The orthodox position derives from Desquenne et Giral UK Ltd v Richardson [1999] C.P.L.R. 744; [2001] F.S.R. 1, in which the Court of Appeal held that interim injunctions granted under the American Cyanamid test are intended to “hold the ring” until trial. Accordingly, the usual order is that costs be reserved.
This approach reflects the fact that, at the interim stage, there is typically no clear winner or loser because injunctions are granted on the balance of convenience to hold the ring. In other words, the Desquenne principle overrides the general rule under CPR Part 44 that the unsuccessful party bears the costs of litigation. As Lord Justice Morritt explained in Desquenne, only the trial judge can ultimately determine which party has succeeded in the underlying claim.
However, the authorities recognise an exception. In Picnic at Ascot v Kalus Derigs [2001] F.S.R. 2, Neuberger J confirmed that “special factors” may justify an immediate costs order. This exception was subsequently endorsed by the Court of Appeal in Wingfield Digby v Melford Capital Partners (Holdings) LLP [2020] EWCA Civ 1647; [2021] 1 W.L.R. 1553.
Mr Justice Choudhury considered the leading authorities and held that a special factor was present justifying immediate payment of costs. He then summarily assessed Palms’ costs of both the without notice hearing and the return date.
To the best of 3 Hare Court’s knowledge, the decision of Mr Justice Choudhury is the first case in which the High Court has treated a respondent’s complete non-engagement with an interim injunction application as a “special factor” justifying an immediate costs order.
The decision will be of practical significance to applicants faced with unresponsive or non-cooperative respondents, offering a route to recover costs without waiting for trial. For respondents, the message is clear: ignore an interim injunction application at your peril.
Nicholas Leah acted for Palms at both the ex parte hearing and the return date, instructed by Westbrook Law.
Please contact us either by telephone: +44 (0)20 7415 7800 or email: clerks@3harecourt.com
