What is an Injunction?
It is a Court Order that requires a party to an action to do or stop doing a certain act. Breach of an Injunction is punishable as a contempt of court.
An Injunction can be sought at any time during proceedings. In some instances an Injunction may even be obtained before proceedings have commenced (Interim Injunctions). If an Interim Injunction is obtained, it will remain in force until the trial, at which point the Court will decide whether to make the Injunction final.
Types of Injunctions
There are three types of Injunction, namely Injunctions:
- To prevent someone from taking certain steps;
- To require the defendant to take action to do something; and
- To require the defendant to take steps to prevent harm occurring.
The above Injunctions can be either interim or final.
If you wish to obtain an Interim Injunction the defendant is normally given notice of the injunction hearing. However, if the matter is urgent or giving notice would result in the defendant harming the claimant in some way, the court may grant an Interim Injunction without notice.
Common examples of injunctions include Freezing Injunctions and Search Orders.
Without Notice Injunctions
A Without Notice Injunction can take two forms. It will either:
- Set a date for an Injunction hearing; or
- Grant an Injunction and inform the defendant that he can apply for the Order to be set aside or varied.
In the first instance, the Injunction will last until the hearing date. At the hearing the Court will decide whether to set aside the Injunction or make it final. The second Interim Injunction will remain in force until the trial or further Order.
Any application made by the defendant to set aside or vary the Injunction must be made on notice.
Injunctions: factors the Court will take into account
The claimant must show that the defendant is either threatening:
- To invade / has invaded the claimant’s legal rights; or
- To behave / has behaved in an unconscionable / oppressive manner.
In essence the claimant must be able to demonstrate that there is a valid cause of action under English law.
The Court has discretion as to whether or not to grant an Injunction. A key factor is whether or not damages are an adequate remedy. The Court will only grant the Injunction in circumstances where damages would not be sufficient.
Interim Injunctions: Claimant’s Cross-Undertaking to Defendant Where the Court grants an Interim Injunction, the decision would have been based solely on the evidence at the interim hearing. If the defendant goes on to win at trial the Court will have to consider whether the Interim Injunction caused loss to the defendant.
If the defendant has suffered loss, then the defendant should be compensated. For this reason, it is rare for the Court to grant an Interim injunction unless the claimant provides an undertaking to compensate the defendant for any harm caused by the injunction.
Interim Injunctions: Court factors
When deciding whether to grant an Interim Injunction, the Court will consider whether:
- The claimant’s case has a real prospect of success
- Damages are an adequate remedy
- What cause of action will cause the least damage to the parties
- There are any other special factors
If it is unlikely that there will be a trial, the Court will investigate the merits of both claims. These factors do not apply to Freezing Injunctions and Search Orders.
For further details and advice please contact:
Mark Whittell
Tel: 0845 165 5252
mark.whittell@cobbetts.com
Nicholas Carr
Tel: 0845 404 1520
nicholas.carr@cobbetts.com
Keith Mills
Tel: 0845 404 2426
keith.mills@cobbetts.com
The content of this briefing note is merely informative and should not be relied upon as a substitute for legal advice.
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