Interim interdict recall means order was wrongful, judge rules
As a general rule, recall of an interim interdict amounts to conclusive proof that the order was wrongously obtained, a Court of Session judge has affirmed.
Lord Pentland gave his ruling in proceedings begun by Aird Geomatics Ltd against a former employee, Richard Stevenson, a land surveyor, involving alleged breaches of a confidentiality clause and a non-solicitation provision in his employment contract. Interim interdict was granted in September 2013 and recalled, following a period of sist for legal aid purposes, in May 2014, the decision being given on the balance of convenience. Mr Stevenson counterclaimed for damages for loss of income and reputation. Prior to proof the principal action was abandoned against Mr Stevenson, who then moved for summary decree regarding the merits of the counterclaim.
For Aird it was argued that there was a distinction between a "pure recall" and a recall after the facts and circumstances of the case had been considered. The decision in Mirza v Salim (2014) that, in general, recall of an interim interdict was conclusive proof of its having been wrongfully obtained, was wrong.
The judge rejected these arguments, holding that Mirza was consistent with "a clear line of authority" in earlier decisions. He continued: "This rule may not apply in cases where the interim interdict can be properly classified as being in the nature of a possessory judgment or where recall has been granted because of a material change in circumstances. Counsel for the pursuers did not suggest that either of those exceptions applied in the present case.
"As to the argument advanced for the pursuers that the general rule applies only where there has been an examination of the facts of the case, I consider this to be misconceived. There is no support for it in the authorities. The case law does not place any such limitation on the application of the rule. Accordingly, I reject this line of argument."
Lord Pentland concluded that the pursuers have no defence to the merits of the counterclaim. "The recall raises a conclusive presumption that the interim interdict was wrongously obtained. From this it follows that the only live issue remaining for resolution in the counterclaim is whether the wrongous grant of interim interdict caused the first defender to sustain any loss." He allowed proof restricted to quantum of damages.