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Interim Injunctions Notes

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Interim Injunctions
Applying for interim injunctions/procedure etc

25.1, Orders for Interim remedies
-(1) the court may grant the following interim remedies:
o (a) an interim injunction [see commentary];
o (b) an interim declaration [see commentary];
o (c) an order, re 'relevant property':
-(i) for the detention, custody or preservation of relevant property;
-(ii) for the inspection of relevant property;
-(iii) for the taking of a sample of relevant property;
-(iv) for the carrying out of an experiment on or with relevant property;
-(v) for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly; and
-(vi) for the payment of income from relevant property until a claim is decided

(d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub para (c) .
o (e) an order under s4 of Torts (Interference with Goods) Act 1977 to deliver up goods;
o (f) an order ('freezing injunction'):
-(i) restraining a party from removing from the jurisdiction assets located there; or
-(ii) restraining a party from dealing with any assets whether located within the jurisdiction or not;
o (g) an order directing a party to provide info about the location of relevant property or assets, or to prove info about relevant property or assets, which are or may be the subject of an application for a freezing injunction;
o (h) an order ("search order) under s7 Civil Procedure Act 1997 (an order requiring a party to admit another party to premises for purpose of preserving evidence etc.
o (i) an order under s33 SCA 1981 or s52 County Courts Act 1984 (order for disclosure of docs or inspection of property before a claim has been made);
o (j) an order under s34 SCA or s53 CCA (order in certain proceedings for disclosure of docs or inspection of property against a non-party)
o (k) order ('interim payment') under r25.6 for payment by a D on account of any damages, debt or other sum (except costs) which the court may hold D
liable to pay;
o (l) an order for a specified fund to be paid into court or otherwise secured,
where there is a dispute over a party's right to the fund;
o (m) an ordering permitting a party to recover personal property to pay money into court pending the outcome of the proceedings and directing that,
if he does so, the property shall be given up to him; ??

o (n) an order directing a party to prepare and file accounts relating to the dispute;
o (o) an ordering directing any account to be taken or inquiry to be made by the ocurt;
o (p) an order under Art 9 Council Directive (EC) 2004/48 on the enforcement of IP rights (order in IP proceedings making the continuation of an alleged infringement subject to the lodging of guarantees).
(2): in para (1)(c) and (g), "relevant property" means property (including land) which is the subject of a claim or as to which any question may arise on a claim.
(3): (the above is a non-exhaustive list): the fact that a party kind of interim remedy is not listed in para (1) does not affect any power the court may have to grant that remedy.
(4): the court may grant an interim remedy whether or not there has been a claim for a final remedy of that kind.

25.2, Time when an order for an interim remedy may be made:
-NB: PD23A para 2: Every application should be made: as soon as it becomes apparent that it is necessary or desirable to make it.
-(1) an order for an interim remedy may be made at any time, including:
o (a) before proceedings are started; and

(b) after judgment has been given.
-(rule 7.2: proceedings are started when the court issues a claim form)
o (a) Para (1) is subject to any rule/PD/other enactment which provides otherwise;
o (b) the court may grant an interim remedy BEFORE a claim has been made
-(i) the matter is urgent; OR
-(ii) it is otherwise desirable to so do in the interests of justice.
o (c) unless court directs otherwise, a D may not apply for any of the orders listed in r25.1(1) before he has filed either an A/S or a defence.
-(3) where court grants an interim remedy before a claim has been commenced ?
court should give directions requiring a claim to be commenced.
-(4) In particular, the court need not direct that a claim may be commenced where the application is made under s33 SCA or s52 CCA 1984 (order for disclosure,
inspection etc before commencement of a claim)

25.3, how to apply for an interim remedy
-NB: PD23A para 2: Every application should be made: as soon as it becomes apparent that it is necessary or desirable to make it.
-Remember, normal rule, Part 23 interim applications: file (1) application notice, (2)
evidence in support, (3) draft order ? at least 3 days before hearing.
-(1) the court may grant an interim remedy on an application made without notice IF:
it appears to Court that there are good reasons for not giving notice ? for procedure, see PD25A para 4 below. ??(2) an application for an interim remedy must be supported by evidence (unless court orders otherwise).
(3) if the applicant makes an application without giving notice ? the evidence in support of the application must state the reasons why notice has not been given.
(Part 3 lists general powers of the court)
(PART 23 GENERAL RULES/procedure apply)

Commentary, 25.3.2, Notice
-General rule, r23.4(1), application notice must be served one ach respondent :
r25.3(1) is an exception, where application may be made without notice if 'good reason'.
-Due to use of mobile devices ? it is unlikely that there will ever be a practical reason why an applicant should not give at least informal notice to respondent.
-Court should not entertain an application of which no notice has been given,
UNLESS either:
o (a) giving notice would enable the Defendant to take steps to defeat the purpose of the injunction (was with freezing and search orders);
o or (b) there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act.
Commentary, 25.3.3, Evidence (need evidence in support of application for an interim remedy (r25.3(2))
-Application for an interim remedy must be supported by evidence, unless court orders otherwise.
-General rule (r32.6(1)): evidence at hearings other than the trial , is to be by witness statement (rather than by affidavit), unless court/PD/enactment requires otherwise.
-However, the evidence in support for applicant may be instead be : set out in their (a)
statement of case or (b) in their application notice, provided they are verified by a statement of truth.
-SO the supporting evidence may be in form of:
o (a) witness statements

(b) in statement of case (if verified by statement of truth)
(c) in the application notice (if verified by a statement of truth)
-If a party makes, or causes to be made, a false statement in an application verified by a statement of truth, without honest belief in its truth ? can be proceedings for contempt of court.
Commentary, 25.3.4, Interim Remedy order hearings in private
-General rule: a hearing is to be in public.
-But could have private hearing in exceptional circumstances, eg:
o (1) that publicity would defeat the object of the hearing;
o (2) it is a hearing on an application without notice, and would be unjust to any respondent for there to be a public hearing;
o (3) the hearing involves confidential information (eg relating to personal financial matters) and publicity would damage that confidentiality. ??

In certain circumstances, the important thing is that: what transpires at a hearing for an interim order (whether public or private) should not be revealed, either by publicity or otherwise, at least for the time being.
That objective may be achieved by a private hearing, but there could be other means available:
o Court has an inherent power to order that information should not be disclosed, and there are certain other similar rules of court (eg 25.9,
restriction on disclosure of an interim payment).
Each derogation from Art 6 (right to a public hearing) and open justice must be justified on the particular facts of the case, by a process of intense scrutiny of the countervailing factors.

Commentary, 25.3.5, Applicant's disclosure duties where application made without notice
-Matter of principle, no order should be made without notice to the other party,
unless 'very good reason' for departing from general rule that notice must be given.
-Granting an interim remedy in form of an injunction without notice is 'exceptional'.
-Court should not entertain an application of which no notice has been given, UNLESS
o (a) giving notice would enable the Defendant to take steps to defeat the purpose of the injunction (was with freezing and search orders);
o or (b) there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act.
-An application who applies for an interim remedy without notice to respondent is under a duty to investigate the facts & fairly present the evidence on which they rely:
o Applicant must fully disclosure to the court ALL MATTERS RELEVANT to the application, including matters which may be adverse to it (whether of fact or law).
o This is a 'high duty' ? applicant must make full & frank disclosure, fair and accurate disclosure of material information.
o Is fundamental duty to the proper functioning of the court's process on any application without notice, since other parties don't have opportunity to correct or supplement the evidence which is put to court. The court is wholly reliant on the info provided by C.
o Duty is (1) to disclosure material facts; (2) present those facts fairly.
o Is a "Golden Rule" that: on an application without notice, the applicant must identify any material facts, including those potentially adverse to application
(those which may constitute a defence or some ground for not granting the order sought).
o The obligation is more significant when it is requested, or foreseeable, that the application be made on paper where judge is left to consider on his own.
-CA, the principles of the duty:
1) The applicant must show the utmost good faith and disclose fully & fairly.
2) Applicant must, for protection and info of the D, summarise their case and the evidence on which it is based. ??

3) Applicant must identify the crucial points for and against the application,
and not rely on general statements and the mere exhibiting of numerous documents.
4) Applicant must investigate the nature of the claim asserted and the facts relied on before applying and must identify any likely defences.
5) Applicant must disclose all facts which reasonably could or would be taken into account by the judge in deciding whether to grant the application.
Particular duty of the advocate, to see that:
o correct legal procedures and forms are used;
o that a written skeleton argument and properly drafted order are personally prepared and lodged with court before the oral hearing;
o that at the hearing court's attention is drawn to unusual features of evidence adduced, to the applicable law, and to the formalities &
procedures to be observed.
o The duty is not restricted to matters of fact, also applies to matters of law and procedure.
If an order is given (for an interim remedy/injunction) but it turns out there was not full & frank disclosure by application ? court may discharge the order (maybe with an adverse costs order, on indemnity basis).
Where there have been without prejudice communications , it may be necessary to refer to the fact of such communications and their effect, if without such a reference the court may be misled., Applicant's disclosure duties where application made on short notice (i.e. less than 3 days)
-R23.7: application notice for interim remedy must be served as soon as practicable after filed, and within 3 days before hearing.
-So applicant must act promptly; but respondent must be given sufficient notice.
-R23.7(4): court may direct that, even if notice is less than 3 days, that notice was sufficient to deal with the application.
-Where a respondent is given 'short notice' of application for an interim remedy, he not have time to properly prepare and put together all relevant factual & legal information before the court
-? so claimant has duty to make full & frank disclosure, even if the respondent is represented at the hearing. The fact that the respondent is represented on an urgent application, appears at the hearing, and makes submissions, does not release/absolve C from this duty.
o No duty on C to provide duplicate information where at the hearing the respondent deals with all the factual & legal issues in the way the applicant would have been obliged to have done to satisfy his disclosure obligations.

25.3.6, Effect of material non-disclosure: Discharge of injunction
-If the duty of full & fair disclosure is not observed ? court may discharge an interim injunction.
-The court my discharge the injunction even if, after full inquiry, the view is taken that the order made was just and would have probably have been made even if there had been full disclosure. ?????

2-fold purpose of this rule:
o (1) deprives wrongdoer of an advantage improperly obtained.
o (2) serves as a DETERRENT to ensure applicants without notice must exercise their duty, and the consequences (including potentially costs liability) if they fail.
It is no excuse for application to say they were not aware of the importance of the matters omitted.
The full disclosure obligation is owed to the court itself, to secure integrity of court's process and protect interests of those potentially affected by court order.
Where there is a substantial breach of the duty ? the court strongly inclines towards discharging the order and not renewing it, to deprive the defaulting party of any advantage the order may have given them.
In considering consequences of any breach of duty, court must consider all relevant circumstances, including:
o Gravity of the breach

The excuse or explanation offered

The severity & duration of the prejudice occasioned to the defendant,
including whether the consequence so breach were remediable and had been remedied;
o Above all, the overriding objective and need for proportionality.
Discharge of the order for breach of disclosure duty s not automatic (is discretionary), but would only be in exceptional circumstances where court would not discharge an order where there had been deliberate non-disclosure or misrepresentation.
Considering of whether the result would have been the same even if there had been full disclosure: this is not a defence/excuse for the applicant; but it is a relevant consideration in the exercise of the court's discretion.
Discharge is not automatic on any non-disclosure being established of any fact known to the applicant which is found by the court to have been material.
Grey line between 'material' and 'non-material' facts

25.3.7, Applications to set aside for material non-disclosure not to be made without proper reason
-Judges critical of a growing tendency among litigants against whom interim injunctions had been granted to 'allege material non-disclosure on rather slender grounds'.
-Litigants are not entitled to conduct proceedings in a disproportionate manner.
-Courts concern that applications to set aside freezing injunctions based on allegations of material non-disclosure should not turn into substantial 'satellite litigation'. Such issues should be dealt with concisely.
-Should not seek application to set aside where proof of non-disclosure depends on proof of facts which are themselves in issue in the action (unless the facts are so plan they can be readily and summarily established). Otherwise the application is liable to become a form of preliminary trial at which judge is asked to make findings on issues properly reserved for trial itself.

25.3.8, Discharge and re-grant of an injunction ?Where serious and culpable non-disclosure sufficient to result in court discharging an interim injunction granted without notice has been established ? the question whether a fresh inunction should be granted is likely to arise.
Judge has a balancing task:
o On one hand, if justice requires that a fresh inunction should be granted to protect the applicant, it might be thought unjust to refuse it on ground of non-disclosure.
o On other hand, the disclosure duty is so important that, in the event of any substantial breach, the court strongly inclines towards discharging the order and not renewing it, to deprive the defaulting party of any advantage the order may have given them.
o Need for a DETERRENT to other potential applicants, to stress the importance of complying with duty of full & frank disclosure.
o & court may order adverse costs orders on indemnity basis against the applicant who has breached the duty.

PD25A (Interim injunctions), paras 4-5 4, Urgent applications and applications without notice
-Remember, normal rule, Part 23 interim applications: file (1) application notice, (2)
evidence in support, (3) draft order ? at least 3 days before hearing (5 days if telephone hearing).
-Urgent applications fall into 2 categories:
o (a) applications where a claim form has already been issued; and

(b) applications where a clam form has not yet been issued

AND, in both cases, where notice of the application has not been given to the respondent.
-Such applications are normally dealt with at a court hearing;
o but, in cases of extreme urgency, may be dealt with by telephone.
-4.3, For all applications dealt with at a court hearing (whether after OR before issue of a claim form):
o (3) the application should take steps to notify the respondent INFORMALLY
of the application (except in cases where secrecy is essential).
o (1) where possible (not strict), should file with the court 2 HOURS before the hearing: the
-(a) application notice,
-(b) supporting evidence
-and a (c) draft order;
o (2) If this HASN'T been done ?if an application is made before the application notice has been issued
-? a draft order should be provided at the hearing
-? and the application notice and supporting evidence must be filed with the court on the same or next working day (or as ordered by the court);

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