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On appeal from: [2011] EWCA Civ 954

In a unanimous decision, the Court dismissed the appeal by Barclays as there was no general rule that an authority such as the FSA, in obtaining a without notice freezing injunction against companies promoting sales of shares without authorisation, should be required to give a cross-undertaking in respect of losses incurred by third parties. Further, there are no particular circumstances which mean that the FSA should be required to give such a cross-undertaking on the facts of this case. Though in a private claim a claimant seeking an injunction would ordinarily be expected to give a cross-undertaking in damages to the defendant(s) and to third parties, different considerations arose in relation to law enforcement actions. When a public authority sought to enforce the law in the interests of the public generally, often in pursuance of a public duty to do so, and enjoyed only the resources which have been assigned to it for its functions, the public authorities could not generally be expected to back their legal actions with the public funds with which they were entrusted for the purpose of undertaking their functions. Such a requirement may inhibit public officials from fulfilling their public duties for fear of exposing public funds to claims for compensation.

For judgment, please download: [2013] UKSC 11
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII