Injunctions are Court orders that require a party to do or to refrain from doing a specific act. An injunction is a remedy and in order for the Court to grant one, you must have a valid claim against the party you are wishing to pursue.
To prohibit a person disclosing confidential information
A ‘freezing injunction’ to restrict the way someone deals with his assets
To order someone to remove and/or re-site a fence that is encroaching over a boundary
To ensure a former employee returns company property (known as an order for delivery up)
An injunction can be applied for with or without notice to the party that is pursued (“the Respondent”). Generally, a court will require the application to be made with notice unless there is real urgency or threat involved.
Interim or Final?
Injunctions can either be made on an interim or final basis.
A final injunction is granted at trial as a remedy after the Judge has considered the case in full.
An interim injunction will be made pending the trial. This is usually to ensure that matters do not escalate before the case reaches a trial. They can be particularly useful if you are looking to prevent someone doing a specific act. In such cases, if the Court finds in favour of the person applying for the interim injunction (“the Applicant”), it will order that the Respondent cease the action pending the trial. Then, at the trial the Court can consider all of the facts and grant a final remedy as it sees fit.
As injunctions can be quite a harsh remedy, the Court will not grant one unless it is satisfied that it is the correct remedy. There are therefore several requirements to satisfy in order for an interim injunction to be granted.
It must be ‘just and convenient’ to grant an injunction. The court will only grant an interim injunction where doing so would maintain a fair balance between the rights of the parties, pending the trial.
Is there a serious question to be tried? This means, is there a real issue between the parties that is supported by evidence?
If there is, the Court must consider the “balance of convenience”
This test can be split into three.
The Court will look at whether the payment of damages would be an adequate remedy for the Applicant if he succeeds at trial. In some cases, the payment of money by the Respondent will be enough to compensate the Applicant for the problems that have been caused. If it would be, the Court will not normally order an interim injunction.
If damages are not adequate (i.e. the only thing that will provide a sufficient remedy is if the injunctions were granted), the Court will look at the cross-undertaking in damages (see below). It will ask, will the cross-undertaking adequately protect the Defendant if the Court subsequently finds at trial that the interim injunction had been wrongly granted? If not, the Court will not usually grant an interim injunction.
If the Court has doubts as to whether damages are adequate, it will consider the specific circumstances of the case. The Court will do what it can to preserve the status quo between the parties.
Cross-Undertaking in Damages
The Applicant will usually give an undertaking (a form of promise) to pay the Respondent compensation if the Court later decides that it should not have granted the interim injunction. This is known as a cross-undertaking in damages. Without it, it is likely that the Court will not grant an injunction.
This is required to ensure that potential Applicants take injunction applications seriously and do not make applications that are without merit. It is essentially the price Applicants pay to obtain an interim injunction.
An injunction is a useful remedy to ensure someone does (or indeed stops doing) a specific act. However, they should not be taken lightly and we would advise that you seek legal advice before making any application. If you would like to discuss a potential injunction, contact our specialist dispute resolution team today on 0113 244 9931.