Injunctions

An injunction may be necessary to preserve or prevent the loss of an asset, protect against personal harm, prevent loss or damage to reputation and safeguard business or personal interests. Their draconian nature means that there are stringent principles in place to determine whether a party will be entitled to an injunction.

An application for an injunction can be made once Court proceedings have begun. Alternatively, 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.

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.

Before a Court will consider granting an injunction, there are three general principles which must first be established on the facts, namely;

1. There is a substantive cause of action, and the other party is either threatening to invade (or had invaded) your equitable rights or is threatening to behave (or has behaved) in an unconscionable manner
2. The court feels that it would be just and convenient to grant the injunction, and no equitable bars exist e.g. unreasonable delay or behaviour on the part of the applicant;
3. Damages would not make an adequate remedy in redress of the dispute

The procedure for applying for an injunction will differ depending on whether the application is to be made with or without notice to the other side.

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.

The application notice must state what order the applicant is seeking, the reasons why the applicant is seeking the order and the date, time and place of any hearing.

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.

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 respondent any notice, for example where the matter is too urgent or where there is a risk that informing the other side will create a serious risk of assets being dissipated before the hearing.

It is important to be aware of the fact that there is an obligation on the applicant for an injunction, particularly in the case of a “without notice” 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.

If you are served with an injunction then you should seek legal advice immediately if possible.

It is also important that you do not take any steps which might breach the terms of the injunction in any way, as a breach of an injunction is generally punishable as a contempt of Court which in some circumstances can lead to imprisonment.

You should also take any action necessary in order to preserve evidence which might be relevant to your case, so long as these steps do not amount to a breach of the injunction.

A freezing injunction is an interim order that prohibits a party from disposing of, or dealing with, his assets. A freezing injunction can be a valuable strategic tool. It helps to ensure that a defendant retains assets against which the claimant may enforce a judgment if the claim is ultimately successful. Assets that can be frozen include bank accounts, shares, motor vehicles and land.

Save for specific circumstances, a claimant or a defendant may seek a freezing injunction at any stage in proceedings. If a party applies for a freezing injunction before a claim has been issued, he must establish some underlying cause of action. The cause of action must be one in which any judgment could be enforced against the intended defendant’s assets.

In any case, it is important for the applicant to act promptly. The Court will take into account any undue delay on the applicant’s part when exercising its discretion to grant a freezing injunction.

A search order is a form of mandatory interim injunction. It requires a defendant to allow the claimant’s representatives to enter his premises and search for, copy, remove and detain documents, information or material. The purpose of a search order is usually to preserve evidence and/or to preserve property which is (or may be) the subject of an action. It is important to note that search orders are not intended to be a way of obtaining evidence (as opposed to preserving it) or enforcing a party’s obligations to give standard disclosure.

Search orders are commonly granted in support of intellectual property claims such as copyright infringement. They have been extended to other types of claim including fraud, breach of confidence claims and even matrimonial cases, if they are the only way of preserving evidence for trial. In some circumstances, a search order may be granted in respect of a foreign defendant and/or overseas premises.

In order to obtain a search order, the claimant must satisfy the following criteria:

1. There is “an extremely strong prima facie case”;
2. The defendant’s actions have resulted in very serious potential or actual damage to the claimant’s interests; and
3. There is clear evidence that the “incriminating documents or things” are in the defendant’s possession and there is a “real possibility” that the defendant may destroy or dispose of the material before an application can be made on notice.

Injunctions may be used as a means of protection through preventing the publication of certain private or confidential information.

An interim injunction to prevent publication is often the primary remedy sought by the applicant. The Court will not grant an injunction to restrain publication before trial unless it is satisfied that the applicant is likely to establish that publication should not be allowed. If the applicant satisfies this test, then the Court will go on to consider the “balance of convenience” factors, including whether damages would be an adequate remedy.

In appropriate cases, a Court may be prepared to grant an interim non-disclosure order to restrain disclosure of private information in the form of a “John Doe injunction”, meaning an injunction against “persons unknown” but who are identified by description. This is common nowadays, with the risk of private information being published on the internet.

A “super injunction” is an interim injunction which restrains a person from:

1. Publishing information which concerns the applicant and is said to be confidential or private; and
2. Publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order)”.

Injunctions are an equitable remedy. It is therefore essential that applicants act reasonably, conscionably and without undue delay.

Applicants need to be mindful of the following issues before applying for an injunction:

• Obtaining an injunction is often an expensive process.
• Acting with speed and urgency is crucial.
• There is an onerous duty of full and frank disclosure.
• If the injunction is granted, the applicant will undoubtedly be required to give a number of undertakings to the court. These will usually include the applicant making a cross undertaking in damages, whereby he undertakes to pay the respondent damages if it is subsequently established that the order should not have been granted. Depending on the circumstances of the case, the damages awarded under a cross undertaking can be substantial.
• Breach of an undertaking to the court constitutes contempt of court, which in some circumstances in punishable by imprisonment.