The injunction was discharged. The task with which the Court was charged at this juncture was to consider whether the ex-parte injunction should continue pending the trial of this matter. The leading authority remains American Cyanamid Co. -v- Ethicon Ltd. [1975] A.C. 396 which set out the well-known guidelines given by Lord Diplock and which have been explained in many subsequent decisions. In particular, the manner in which they are to be approached was suggested shortly after by Browne LJ in Fellowes and Son -v- Fisher [1975] 2 All ER 829. He suggested that the first matter the court must consider [once it has been established that there is a serious matter to be tried] is whether damages would be an adequate remedy if the plaintiff should subsequently succeed in the action. If that were not the case, then the court should pass to a consideration of whether, if the injunction was to be granted, the plaintiff's undertaking would provide sufficient compensation [36].
The Court concluded that there is a serious issue to be tried [43]. The Court was of the view that any harm which may come to the Plaintiff, can be adequately compensated in damages, the same is not true for the Defendant. As such the Court was of the view that the balance best is met by allowing the Defendant to move forward with the auction of the Property and discharged the order of 28th July 2022 [55].