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Interim Applications Injunctions Notes

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Procedure for an interim injunction (Prohibitory or mandatory)

What is it?

An interim injunction is an equitable and discretionary remedy - Civil procedure rules (CPR) 25.1(1)

Who may apply?

Either the claimant or the defendant

When may an application be made?

1) After the issue of proceedings

2) Before the issue of proceedings if CPR 25.2(2)(b): (i) the matter is urgent; or (ii) if it is otherwise necessary in the interests of justice

How is the application made?

1) With notice CPR 25.3(1)

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Interim injunctions are normally with notice

2) Without notice CPR 25.3(1)

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In circumstances of great urgency

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The court may grant an injunction without notice if it appears that there are good reasons for not giving notice CPR 25.3(1)

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The applicant must disclose fully to the court all matters relevant to the application through 'full and accurate disclosure' for both side of the case - Memory Corporation Plc v Sidhu

If an injunction is granted, the claim form and the order for the injunction will be served together - 25A PD 4.4(1) and (2)

What procedure is required to make an application?

1) A with notice procedure

1) Issue the application notice

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Stating the order sought, the date and time of the hearing - 25A PD 2.1(1) + (2)

2) Application notice and evidence is filed at court

3) Draft order is filed at court

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Will include an undertaking from the applicant to pay damages to the respondent if it transpires the order should not have been made

The evidence will be by a witness statement and refer to: - 25A PD

3.2(1) + 3.3 a) The cause of action b) The injunction sought c) Why the injunction should be granted

5) A copy of the application notice, evidence and draft order are served on the respondent at least 3 days before the hearing - 25A PD 2.2 and 2.4

6) With notice hearing takes place - Apply grounds - Order might be granted

If order not granted / grounds not established - Stop here

7) If an order (injunction) is made, it will be served on the respondent

2) A without notice procedure - CPR 25A PD 4

1) Issue the application notice (if time permits)

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Stating the order sought, the date and time of the hearing - 25A PD 2.1(1) + (2)

2) Application notice and evidence are filed at court.

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If there is time, this should be at least 2 hours before the hearing -25A PD 4.3(1)

3) Draft order is filed at court

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Will include an undertaking from the applicant to pay damages to the respondent if it transpires the order should not have been made

4) A without notice hearing takes place - Apply grounds - Order might be granted

5) The applicant will then notify the respondent of the application if an injunction is granted and the order served on the respondent along with minutes of the hearing.

6) Court may set a return date for a with notice hearing - 25A PD 5.1(3)

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The injunction will likely be valid until this return date.

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At this hearing the undertaking will be enforced, varied or discharged

3) Urgent without notice applications

1) May be dealt with by telephone 25 A PD 4.2 and 4.5

The evidence will be by a witness statement and refer to: - 25A PD

3.2(1) + 3.3 a) The cause of action b) The injunction sought c) Why the injunction should be granted d) Why the application is without notice - 25A PD 3.4 e) As it is without notice, it will put forward the argument for the respondent

If order not granted / grounds not established - Stop here

What grounds must be established for a mandatory interim injunction?

1) Injunctions are discretionary remedies

2) Apply the test for interim mandatory injunctions, which is that they will be granted if:

a) The applicant will suffer serious harm if the injunction is not granted; and

b) The applicant is likely to succeed at trial; and

c) The respondent is not required to incur expenditure disproportionate to the applicant's harm

What grounds must be established for an Prohibitory interim injunction?

1) Injunctions are discretionary and equitable remedies

2) There must be a relevant cause of action as injunctions cannot exist in a vacuum

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E.g. A breach of a clause of a contract

3) Apply the guidelines from American Cyanamid Co. v Ethicon Ltd. A Prohibitory injunction should be granted the guidelines are satisfied

a) Is there a serious question to be tired, that is not 'frivolous or vexatious'

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This does not involve trying to decide difficult questions of law

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Just need to be satisfied there is a serious question of fact or law to be tried

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E.g. A clear breach of a JV agreement is not frivolous or vexatious Yes b) Are damages an adequate remedy for the parties?

1) If the applicant succeeds at the eventual trial, could the applicant be adequately compensated by damages for any loss caused by refusal to grant an interim injunction?

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This includes if the respondent is not financially able to satisfy such an award for damages

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E.g. If the harm is serious and likely to continue or it is irreparable (such as reputation damage)

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E.g. If the harm is difficult to asset or quantify in financial terms No

Yes

2) If the injunction was wrongly granted, could the respondent be adequately compensated by damages for any loss caused by the granting of an interim injunction?

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