What is an injunction?
An injunction is a court order that prohibits a company or person from doing something (‘prohibitory injunction’) or orders that a particular act is done (‘mandatory injunction’).
A party that breaches an injunction can be held in contempt of court, which can result in imprisonment.
When can you obtain an injunction?
An application can be made before or after court, proceedings have been commenced.
An interim injunction is made before a case goes to trial. It is normally put in place for a particular period of time, either until the trial or a further order of the court, at which point it can be made final.
Interim injunctions can be applied for ‘on notice’ or ‘without notice’ and can be ‘ex parte’ or ‘inter partes’. When made ‘on notice’, the other party is informed, in advance, that an application is being made and where the application will be heard, so they can attend the court hearing.
When made ‘without notice’, the party applying attends the court without the other party’s knowledge or presence. The court must be given good reasons to explain why the other party is not given notice. Usually, applications without notice are made due to reasons of urgency or that giving notice would risk assets being dissipated or evidence being destroyed.
On an ‘ex parte’ interim injunction application, only the party applying puts its evidence before the court at the first hearing. The court will normally fix a date for a further hearing, with all sides present or allow the party subject to it to apply to vary or discharge it. On an ‘inter partes’ application, the court hears both sides of the case.
At all times, the court retains the power to set aside or vary an injunction, on the application of any party.
What must you show to obtain an injunction?
For all injunctions, the following requirements must be met:
- The party applying must have a ‘claim’, i.e. a valid underlying substantive cause of action.
- Injunctions are discretionary equitable remedies. This means the court decides whether or not to grant it, where it is just and convenient to do so. Any delay in applying for it may seriously damage the prospects of obtaining one. The party applying must also have ‘clean hands’ – they must have acted properly themselves.
- Damages must not be an adequate remedy – so an injunction will only be grated where money alone would not be an adequate remedy.
Before an interim injunction is granted, the court will often require the applying party to provide a cross-undertaking in damages, to compensate the other party in case the court decides at a later point that the injunction should not have been granted or should be discharged.
The applying party has a duty to make proper enquiries before applying for an injunction. This includes informing the court of any matter that may help the other side. Full and frank disclosure must be provided as failing to do so is likely to result in the applying party paying the other party’s costs and damages, for any harm caused by the injunction application.
How do you apply for an injunction?
Procedurally, an application is made using a formal application notice that clearly states:
- What order you are seeking to obtain from the court;
- Why the order is being sought;
- If there is a hearing, the date, time and place of it; and,
- Any evidence, usually including a witness statement, verified by a statement of truth.
Whilst this may seem simple, the costs of applying for or resisting an application for an injunction will always depend on the facts of each case.
Injunctions are not easily granted and can be an expensive and time-consuming remedy. If you are interested in applying for one or are the subject of application you want to resist, please contact LF Legal on 0203 146 3549 / [email protected]