Ashfords Solicitors - Client Guide to Injunctions

Introduction

This Guide explains Injunctions in general terms. The intention of this Guide is not to advise you on whether or not to apply for an injunction (which will depend on the facts of your own case).

The subject of Injunctions is a complex area and no guide can ever set out all the factors relating to a particular case. THIS GUIDE IS NOT THEREFORE A SUBSTITUTE FOR DETAILED ADVICE ON YOUR CASE.

If you would like further explanation of any points in this Guide, please contact us.

What is an Injunction?

An injunction is a court order which orders a person to stop (called a "prohibitory injunction") or to do (a "mandatory injunction") a particular act or thing. A breach of an injunction is generally punishable as a contempt of court and in some circumstances can lead to imprisonment.

When can a party seek an Injunction?

An application for an injunction can be made once Court proceedings have begun. Also, the court can grant an injunction before the start of Court proceedings if the matter is urgent or if it necessary in the interests of justice (for example if there is a real risk that funds will be dissipated or evidence will be destroyed).

An injunction made before a case goes to trial is known as an "interlocutory" or "interim" injunction. It can be expressed to remain in force for a particular period of time. Otherwise, it remains in force until the matter comes to trial or until the court makes any further order. When the matter comes to trial, the court will decide whether or not to make a "final" injunction. Interim injunctions are discussed in greater detail below.

General Principles

The following three principles are applicable to all injunctions:

1. The party applying for the Injunction must have a valid underlying claim

To obtain an injunction, you must be able to show that you have a substantive cause of action (i.e. circumstances/facts entitling you to seek legal redress) in English law. Also, you must be able to show that the other side is either:

threatening to invade (or has invaded) your legal or equitable rights; or
threatening to behave (or has behaved) in an unconscionable manner.

2. Injunctions are a discretionary remedy.

An injunction is an equitable remedy, which means that:

i. The court is never obliged to grant an injunction and will use its discretion to only grant an injunction where it appears to be just and convenient to do so.

ii. An injunction is subject to the usual equitable bars, in particular:

Any delay in applying for an injunction can damage seriously the prospects of obtaining an injunction.
The party applying for the injunction must have "clean hands" (i.e. they must have acted properly themselves).

3. Damages must not be an adequate remedy

The court will not grant an injunction if damages would be an adequate remedy (i.e. if the party applying for the injunction can be redressed in full simply by an award of damages).

Interim Injunctions

Interim injunctions are either obtained "on notice" or "without notice". With an "on notice" application, the other side is told that the application for an injunction is being made and when and where it will be heard.

A "without notice" application is made without the other party having any notice of the application or being present at the application hearing. The court will only grant an injunction on such an application if there are good reasons for not giving the defendant any notice (e.g. the matter is so urgent that the claimant does not have time to tell the defendant that he intends to seek an injunction, or where giving notice would lead to a serious risk of assets being dissipated before the injunction is heard).

Applications for an Interim Injunction can be "ex parte" or "inter partes". In an "ex parte" application, only the party seeking the injunction has the opportunity to put its case to the Court. On an "inter partes" application, the Court will hear both sides' arguments.

There can also be combinations of the above. For example, a particularly urgent application will be "ex parte without notice". However, if it is slightly less urgent (but there is still not time to allow the other side time to prepare the case), it may be "ex parte on notice" (in which case the other party can attend the hearing and may be allowed make limited representations, but will not be able to present a full case).

To proceed with an "ex parte" application, it is necessary to show a strong enough case to justify the court not hearing the other side's case. Also, the party applying for the injunction must disclose all relevant facts to the court, including any matters favourable to the other side. This is extremely important as a failure to do this can result in the injunction being set aside (together with an order to pay the costs of the other party and damages for any harm caused by the injunction).

If the Court grants an "ex parte" injunction it will usually fix a date for a further hearing, with all parties present, and the interim injunction will only last until the date of that hearing. Alternatively, the interim injunction may be expressed to last indefinitely (until trial), but say that the party subject to the injunction can apply to the Court to vary or discharge the undertaking. At any further hearing, the party that is subject to the injunction can argue that the injunction should not have been granted or should be set aside.

The court has the power, at all times, to vary or set aside an injunction.

Cross undertaking as to damages

In general, before granting an interim injunction, the court will require the party applying for an injunction to give the other side a "Cross undertaking in damages" (i.e. an undertaking to compensate the other party for any harm that the injunction may cause, if the Court should decide at a later date for whatever reason that the injunction should not have been granted or should be discharged). Depending on the circumstances of the case, the damages awarded under a Cross-Undertaking as to damages can be substantial.

The Court may also require the party applying for the injunction to demonstrate that they have the means to meet any liability under the Cross-Undertaking (and if they are outside England and Wales, they may have to put and leave funds in England and Wales as a deposit for any such liability). The ability or otherwise of the party applying for an injunction to meet its potential liability under this undertaking is taken into account in deciding whether or not to grant an injunction.

What procedure must be followed for obtaining an Injunction?

An application is made to the court that is (or will be) dealing with the main claim. The requirement for a formal Application Notice may be dispensed with in the case of a without notice application (although it will normally then be necessary to undertake to issue an Application Notice as a matter of urgency).

An Application Notice must state:

What order the claimant is seeking;
The reasons why the claimant is seeking the order;
(if there is a hearing) the date, time and place of the hearing.

If the claimant wishes to rely on anything in the application notice as evidence, it must be verified by a statement of truth.

An application for an interim injunction must usually be supported by evidence. This will usually be in the form of a witness statement or affidavit including all material facts of which the court should be made aware, and attaching relevant documents. Indeed, injunctions are normally argued on the basis of statements or affidavits, rather than "live" witnesses.

As mentioned above, there is an obligation on the applicant for an injunction (and particularly in the case of an ex parte application) to inform the court of any point that may help the other side or that it believes the other side would have made if it had the opportunity to be heard. This duty extends to facts that the claimant or the other side would have known about had they made proper enquiries. If the court subsequently considers that the party applying for the injunction has not made proper enquiries or full disclosure, it will set aside the injunction, which will expose that party to a damages claim under his cross-undertaking (as discussed above) and an adverse costs order.

With Notice Application

A "with notice" application must be served on the other side, together with supporting witness statements and copies of any draft orders the claimant is seeking, as soon as possible after it has been issued by the Court and in any event, at least 3 days before the hearing of the application (unless the Court fixes a different time-table).

Without Notice Application

In a "without notice" application, evidence must be submitted, explaining the reasons (as described above) why notice has not been given or is not appropriate. In cases where there is insufficient time to make an application in writing, the application can be made orally. In such cases, however, the court will require an undertaking from the claimant that they will file at Court and serve on the other side written evidence (including the evidence that has been given orally) forthwith.

If the court grants a without notice injunction, the party applying for the injunction must again serve the injunction and all supporting evidence on the other party.

In addition to the usual cross-undertaking as to damages, an injunction made without notice will usually require the party applying for the injunction to provide the following undertakings:

a) to serve the application notice, supporting evidence, and the injunction on the defendant as soon as possible;
b) (where relevant) to file the application notice and pay the court fee on the same day or the next working day; and
c) (where relevant) to issue the claim form and pay the court fee on the same day or the next working day (unless the court gives other directions for the commencement of the claim).

It will also usually contain a return date, which is the hearing at which the defendant will have the opportunity to argue that the injunction should be set aside.

What costs are involved?

Whilst the costs of applying for or resisting an application for an injunction will always depend on the facts and circumstances of the particular case, injunctions are in general an expensive and time consuming remedy and costs can quickly run into thousands and indeed tens of thousands of pounds.

Factors that will affect the level of costs will include:

The urgency of the application.
The number of witnesses involved.
Whether the application is with or without notice.

Your Time

In addition, you should bear in mind that applying for (or resisting) an injunction will inevitably take up a large amount of your time, as it will almost certainly be necessary to collect detailed evidence at short notice and to respond (again at short notice) to evidence served by the other side.

NOTE

Whilst we obviously hope that this guide will be of assistance to you, it is intended to provide only generalised guidance on English law to our clients and is no substitute for specific advice in relation to the circumstances of a particular case. If you would like specific advice on your matter, please contact your litigation contact at Ashfords.

Key Contacts

Client Guide to Injunctions

Introduction