Interim Injunctions Notes

INTERIM INJUNCTIONS (IIs)

• injunction = a court order prohibiting a person from doing something (prohibitory) or requiring a person to do something (mandatory)

• any party can apply

• need substantive cause of action

WHICH JUDGE? (PD25A para 1)

• judge who has jurisdiction to try claim; OR

• HC master / HC DJ by consent; OR

• coco DJ if has trial jurisdiction (small claims / fast track)

WHEN TO APPLY? (r25.2)

• after D has filed AoS / defence

PRE-ACTION WITHOUT NOTICE INTERIM APPLICATION - REAL URGENCY

• C may apply pre-action if:

1. matter is urgent; OR

2. otherwise necessary / desirable to do so in the interests of justice

• can also be without notice if no practical possibility of giving 3 clear days' notice

• give informal notice (unless secrecy required)

• court often dispenses with application notice - will require undertaking to file app notice and pay fee on same or next working day

• almost always considered at a hearing (but without full / any notice to respondent)

Application dealt with at court hearing (usual) e.g. just before court opens - get priority in the list

• if possible, file application notice + evidence + draft order 2 hours before hearing

• apply before issue of app notice - provide draft order at hearing + file app notice and evidence on the same or next working day or as ordered by the court

• apply before issue of claim form - give undertaking to issue claim form immediately or court will give directions for the commencement of the claim (para 4.4)

Application dealt with by telephone (EXTREME urgency) e.g. court closed i.e. after 5pm

• usually fax draft order to judge

• must file app notice + evidence + 2 copies of order for sealing with court on same or next working day as ordered

The pre-action order

• if granted, court may give directions requiring a claim to be commenced (r25.2(3))

• if app made before issue of claim form, serve claim form with order (PD25A para 4.4(2))

• must include

  • undertaking to serve app notice + evidence + any order made as soon as practicable

  • return date for further hearing at which respondent can be present

  • statement of right to apply to set aside or vary the order within 7 days after service (r23.10)

APPLICATIONS DURING PROCEEDINGS

• same as for other on notice interim applications

• file skeleton argument

THE ORDER

Contents

• penal notice on front page warning D that breach may result in imprisonment, punishment, fine or sequestration of assets (r81.9)

• undertakings given by C:

  • all orders must contain (unless court orders otherwise) (PD 25A para 5.1)

    • undertaking to pay fee

    • undertaking to pay damages

      • if order made before filing app notice = undertaking to file app notice and pay fee on same or next working day

      • if order made before issue of claim form =

        • undertaking to issue claim form and pay fee on same or next working day; or

        • directions for commencement of claim

  • orders for without notice applications must contain

    • must include (unless court otherwise orders)

      • undertaking to serve app notice + evidence + any order made as soon as practicable

      • return date for further hearing at which respondent can be present

      • statement of right to apply to set aside or vary the order within 7 days after service (r23.10)

Terms

• injunction must be worded with a very high degree of precision, so D can know with certainty what is and is not permitted, otherwise won't be granted

Personal service

• unless court dispenses with service (r81.8) must be personal so can be enforced in committal (rr81.5 and 81.6)

THE TEST

STEP 1: Court's discretion

• HC may grant an injunction if it appears to the court to be just and convenient (may be just and proportionate in light of HRA) to do so

STEP 2: American Cyanamid

1. serious issue to be tried?

   • does claim have substance and reality?

2. would damages be an adequate remedy for applicant?

   • damages inadequate if:

     1. D can't pay

     2. wrong irreparable

     3. damage non-pecuniary

     4. no available market to turn to for alternative

     5. damages difficult to assess

     6. contractual liquidated damages lower than probable loss from breach

3. if damages would be inadequate, does C's undertaking in damages provide adequate protection?

   • aim = to compensate D if injunction wrongly granted

   • general rule: always required, may extend to third parties

   • NOT decisive stage legally aided C can be granted II

   • NOT required if Crown or LA seeking II to enforce law

4. balance of convenience

   • will granting / refusing will cause irremediable prejudice to either party?

   • court considers e.g.

1. prejudice to C / D if injunction not granted / granted

2. likelihood of such prejudice occurring

3. extent to which damages would be compensatory

4. likelihood of each party being able to pay

5. likelihood injunction will turn out to have been wrongly granted / withheld

   • relevant factors

1. being deprived of employment

2. damage to business through picketing

3. damage to goodwill of a business

4. closing down a factory

5. possibly company being wound up

6. disruption to third parties

7. public interest

8. length of time to trial (shorter, more likely to grant)

   • if factors evenly balanced

     • status quo

       • if no delay = state immediately preceding claim form

       • if unreasonable delay between issue of claim and issue of application for II = state immediately before application

       • duration of period since last chance must be more than minimal having regard to length of parties' relationship e.g. 10 days = minimal, otherwise, state before last change = status quo

       • special factors e.g. commercial impracticability

     • merits of the claim (last resort)

       • if no credible dispute that strength of one party's case disproportionate to the other's

       • court cannot justify anything resembling a trial

EXCEPTIONS WHERE AMERICAN CYANAMID TEST DOES NOT APPLY

Interim mandatory injunction

• overriding consideration = which course is likely to involve least amount of injustice if wrongly granted / refused

• also need high degree of assurance that C will succeed at trial (Shepherd Homes v Sandham)

• court must keep in mind that an order...

Buy the full version of these notes or essay plans and more in our BPTC Civil Ligitation Notes.