A cross undertaking in damages can prove costly, says Jonathan Pratt
The purpose of a cross undertaking in damages is to compensate the subject of an interim injunction for losses suffered if it subsequently transpires that the injunction was wrongly obtained. The recent case of Iman Said Abdul Aziz Al-Rawas v Pegasus Energy Limited [2008] EWHC 617 (QB), [2008] All ER (D) 102 (Apr) is an interesting example of how that compensation is calculated and how the failure by an applicant to give full and frank disclosure in a without notice application can affect the assessment of damages.
The applicant obtained a freezing order and a search and seizure order in the High Court in support of proceedings she had brought in the Supreme Court of Mauritius. Both orders were subsequently discharged on their merits.
The judge also found that the witness statements made in support of the without notice applications contained serious and material non-disclosure and that this in itself would have justified the discharge of the orders. The Court of Appeal dismissed an application for permission to appeal
