This guide introduces the process of obtaining injunctive relief through the English courts. This note does not extend to matters involving overseas jurisdictions. The procedure is set out in the Civil Procedure Rules Part 25 and Practice Direction 25A https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part25
What is an injunction?
An injunction is an order from the court requiring the infringing party to do a specified act (mandatory injunction) or to refrain from doing a specified act (prohibitory injunction). It may be sought to prevent anticipated wrongdoing (quia timet/precautionary injunction) or sought to negate the benefit of wrongdoing (spring board injunction).
They are not a standalone remedy and sought as part of proceedings.
An injunction may be:
- Interim: granted at early stage in proceedings.
- Final: granted at the conclusion of proceedings.
- Temporary: pending either the resolution of a final hearing or until a specific date
- Permanent: granted indefinitely. This cannot be granted unless/until the claim succeeds.
Types of injunctions
Where injunctions are sought for commercial protection, the most common types of orders are as follows:-
- Freezing Order: restrains the defendant from disposing of or dealing with assets, typically to preserve assets until judgment can be obtained or enforced. All types of assets can be frozen, including bank accounts, shares, motor vehicles and land.
The respondent is likely to be able to choose which assets he uses to meet his ordinary living and legal expenses within the scope of the exceptions in the order.
- Search Order: It allows the applicant’s representatives to enter the respondent’s premises (but not forcibly) and to search for, copy and remove documents and material, usually with the purpose of preserving evidence or property which is the subject of action.
Such orders are only granted if there is reason to believe that there is a likelihood that the respondent would destroy documents in contravention of a court order. The search order must specify the premises to be searched and the specific materials sought. The materials obtained can only be used for the proceedings in which the order was granted.
A search order and accompanying documents must be served and overseen by a supervising solicitor, who must have experience in search orders.
What is equitable relief?
It is a discretionary remedy, considered on a case-by-case basis.
The court will only grant an injunction where the court can be persuaded that the respondent’s rights should be restricted. The prospects of success will be subject to various factors, including:-
- Risk – Is it necessary to prevent/remedy wrong-doing? In the case of search orders and freezing orders the court will consider the risk of dissipation.
- Merits of the claim/proposed claim. The claim must have a good arguable case and not be frivolous or vexatious.
- Acting quickly. Any delay in applying for an injunction can seriously damage the prospects of success.
- Precision/Clarity: The application should include the draft injunction sought. The chances of success will depend upon the clarity and enforceability of that draft injunction.
- Conduct of the applicant. The applicant must have “clean hands” (i.e. they must have acted properly themselves, not engaged in misconduct or illegality).
- Adequacy of damages. An injunction must be necessary and will not be awarded where an applicant will be adequately compensated with damages.
- Inconvenience. The court will weigh up the respective inconvenience against loss to each party. Where the consequences are evenly balanced, the court will look to preserve the status quo.
Applying for an interim application
- Application. The application must include an application notice (usually N244, stating what order is sought, the reasons why and if there is a hearing the date and place of that hearing) a claim form (wherever possible), evidence (usually witness statements or affidavits and exhibits) and a draft order.
- Draft Order. The draft order should be precise and should usually contain a penal notice.
- Acting promptly. In addition to increasing the chance of the injunction being granted, acting promptly may also strengthen the claimant’s position and positively impact the subsequent litigation.
- Timescales. Whilst an interim order may be made at any time, the court may only grant an interim remedy before a claim has been issued if the matter is urgent or it is otherwise desirable to do so in the interests of justice (for example there is a real risk that funds will be dissipated, or evidence destroyed).
- Notice. The applicant may make an application without notice if there are good reasons for not giving notice (e.g. it would defeat the purpose of the application or would result in tipping off in suspected criminal matters). Such application must be supported by full and frank disclosure (including adverse disclosure), unless the court orders otherwise, and served on all parties, not less than 3 days before the injunction hearing (where possible). It must be served personally if it includes a penal notice.
What are cross undertakings?
Typically, a cross-undertaking should be included in the draft order requiring the applicant to pay for any consequential damage the respondent (or any third party) sustains by reason of the injunction should the court decide later that the injunction should not have been granted/granted on the terms granted.
Third parties and injunctions
In the case of freezing injunctions, it is usually crucial for claimants to notify third parties (such as the respondent’s bank, agents and employees), to ensure that such orders are complied with.
How much does it cost to take out an injunction?
Costs will depend upon the urgency of the application, the number of witnesses involved and whether the application is with or without notice. However, typically injunctions are expensive and time-consuming.
The general rule in interim injunctions, is that costs will be reserved until the final hearing (to enable to costs to be reviewed retrospectively). However, in the case of freezing injunctions issued on the balance of convenience the court is likely to determine the costs at the interim, injunction hearing.
Where a material non-disclosure or misrepresentation in the application is established, the court is likely to discharge the injunction and penalise the applicant on costs.
How are injunctions enforced, for non-compliance?
Seizure of assets, fines and in some cases imprisonment
A party who disobeys an injunction will be in contempt of court. There are general powers to punish breach of an injunction.
- Fine: seizure of assets and fines.
- Committal: if the injunction included a penal notice (ie. A warning in a specific form), courts have the power to commit the offending party for contempt of court which is punishable by an unlimited fine or imprisonment of up to two years. The courts have repeatedly cautioned against delay in seeking committal.
- Unless Order: the applicant may apply for an unless order. An ‘unless order’ is an order by which a conditional sanction is attached to an order requiring performance of a specified act by a particular date or within a particular period.
- Bench warrant: in the case of freezing orders, an applicant may apply for a bench warrant to secure a respondent’s attendance at court for failure to comply. After such a warrant has been issued the defendant may be arrested and held in custody until the hearing.
How Moore Barlow can help
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