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Prohibitory Injunctions Notes

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Prohibitory Injunctions When is it appropriate to apply for mandatory/ prohibitory injunctions? CPR PD 25A When to apply for Interim Prohibitory Injunctions an interim injunction is an interim remedy and falls under CPR Pt 25. In making such an application, you must comply with the provisions of CPR Pt 25 and of Part 23 which deals with the application generally. An interim injunction is a court order, breach of which is punishable as a contempt of court SPOT the injunction and apply the right tests in exam. Apply the arguments for your client from his perspective. If not giving notice, do need good reason because it is ONLY three days notice for an interim application,

When is it appropriate to apply for mandatory/
prohibitory injunctions?

Injunctions are common in commercial cases because they can be used to protect confidential and commercially sensitive information, and to guard against the dissipation of assets. Generally only available to C

When can they be sought???

Types:

At any time after proceedings have been commenced In exceptional circumstances, even before proceedings have been commenced When made before trial they are called "interim injunctions" Remain in force until trial (or further order)

Prohibitory/negative - prevents D from taking certain steps (e.g. soliciting customers of C) Mandatory - require D to do something (e.g. remove an obstruction to C's light)
? Must specify exactly what D has to do and time within he must do it
? Granted only if C would suffer serious harm should it not be granted
? Court will not require D to incur expenditure which is disproportionate to harm C will otherwise suffer Quia timet - require D to take steps to prevent harm occurring (e.g. to provide support for C's land in order to prevent subsidence)?General principles for

Where D has as yet done no hurt to C but is threatening and intended to do works which will cause irreparable harm to C or his property if carried to completion Where C has been fully recompensed (at law and equity) for damage but where he alleges that an earlier action of D may lead to future causes of action Granted only to restrain an apprehended or threatened injury only where the injury is certain or imminent or where mischief of an overwhelming nature is likely to be done

C must have locus standi (interest + cause of action)
? Maatshappij De Zeven Provincien VN - C must show that D is

applying to injunctions: always mention this in the exam answer?
Courts powers:?either: o Threatening to invade (or has invaded) C's legal or equitable rights o Threating to behave (or has behaved) in an unconscionable manner They are a discretionary (equitable) remedy - Senior Court Act 1981 s 37 "The High Court may by order (whether interlocutory or final) grant an injunction...in all cases in which it appears to the court to be just and equitable to do so" Damages must be an inadequate remedy S.37 SCA 1981, injunction can be granted in all cases where just and convenient to do so May be granted unconditionally or on T&C's as court sees fit. S.38 CCA 1984 gives county court same power to gran injunctions as high court BUT NOT freezing orders or search orders

Enforcement of injunctions for beach

Individuals
? Contempt of courts (can include committal to prison)
? Fine

Apply to court for contempt

Company or corporate body Assets can be seized (sequestration) Non parties for knowingly assisting in breach of an injunction

Criminal offences:?

Breaches of Treaty of Rome:Private individual cannot usually obtain, AG seeks (sometimes the LA under s.222 LGA 1972) Individual can get injunction restraining criminal acts only if he can show that: o Offence was created to protect a particular class of people; and o He is a member of that class; and o He has suffered special damage as a result of D's crime Garden cottage foods ltd v Milk Marketing Board 1984 - any person who would be harmed by breach is entitled to injunction restraining it

Procedure for Obtaining Interim Injunctions Interim applications procedure (Pt 23.3)

1. As a rule, always see if matters can be agreed or resolved with the other side before making an interim application. This is pursuant to the OO and a failure to do so could lead to an adverse costs order being made.

2. Serve notice of application on the other side (unless exception in PD 23A para 3 applies, ie freezing injunction or search order).

3. Complete the application notice (N244) and ideally make sure it is supported by evidence (PD23A para 9.1). A witness statement from the client satisfying Pt 32 will suffice. If you wish to rely on the N244 contents, it must be verified by a statement of truth. The application notice requires that you state which order is sought and why (Pt 23.6).

4. Submit the application notice and supporting evidence to the court where the claim will be issued/was started/has been sent/where the trial will take place (Pt 23.2) along with: a. The requisite fee b. An additional copy of the notice for each party c. A copy for the court d. A copy of the draft order sought, in all but the most simple application (PD 23A) e. The N244 must be served at least three clear days before the hearing, unless another time limit is specified.

CPR Part 25 - injunctions CPR Part 23 - interim application Procedure for obtaining interim prohibitory injunctions??????

issue claim form (or give promise to court to issue shortly after injunction hearing) app notice N244 with WS (making application 2.2 in resource pack) R23.6/PD25A para 2.1 draft order + disk PD25A para 2.4 Personal service on the other side ASAP (at least 3 days before hearing PD 25A para 2.2), draw their attention to the penal notice (this means it is contempt of court to breach - individuals can go to prison and companies can have their assets sequestered) on the front for enforcement purposes, also if D doesn't turn up to hearing personal service means the court knows that D did receive the notice because there will be an affidavit from the person who served the notice D can serve WS in opposition The application for the injunction will be to the court where the main action will be commenced. Under r 23.6 the application notice must state: what order the applicant is seeking; and briefly, why the applicant is seeking the order. Paragraph 2 of PD 25A says that the notice must also state the date, time and place of this hearing. Rule 22.1(3) states that, if the applicant wishes to rely on anything in the application notice as evidence, it must be verified by a statement of truth. Rule 25.3(2) says that an application for an interim remedy must be supported by evidence unless the court orders otherwise. This will usually be in the form of a witness statement including all material facts of which the court should be made aware. Rule 23.7(1) requires the application notice to be served as soon as

?practicable after it has been issued and, in any event, at least three days before the hearing of the application. The court may, however, allow a shorter period of notice, or even dispense with service if this will help achieve the overriding objective. The application must, when it is served, be accompanied by any supporting witness statements and copies of any draft order the applicant is seeking. Rule 23.7(2) says that the supporting witness statements must be filed with the court along with the application notice. Under r 23.11, the court has power to proceed if the applicant or the respondent fails to attend the hearing. If the applicant fails to attend, the court will almost certainly dismiss the application. If the respondent fails to attend, the court will grant the application, but only if it is satisfied that the respondent had sufficient notice of the application to be able to attend. It will be easier to satisfy the court on this point if the papers were served on the respondent in person.

Should interim application be made with or without notice. Normally obtained on notice (D given notice of hearing). o Both parties will be present and can be heard by the court. o Arguments for or against granting the injunction will be fully canvassed when the application is first before the judge. o If a defendant is properly served with notice of the application but does not turn up for the hearing, it 's his own fault if an interim injunction is granted and he cannot usually seek to have the matter re-opened at a further hearing unless circumstances change.
? Last until trial of C's action unless set aside earlier by the court

Should interim applicatio ns be made with/witho ut notice?

However, r 25.3(1) court may grant without notice if there is good reason, e.g. o Insufficient time to give notice o Giving notice would enable D to harm the C in some way (destroying evidence which would support C's case) or try to pre-empt court order o C case must be strong enough to justify the court not hearing D's case (departure from the rules of natural justice) o C MUST disclose all relevant facts, including matters favourable to D. Failure to do this will result in injunction being set aside with orders for costs against C who will also have to pay damages to D for any harm causedInjunction without notice takes one of two forms:

S.22(1) Trade Union and Labour Relations (consolidation) Act 1992 prohibits injunctions without notice where D likely to claim he's acting in contemplation or furtherance of trade dispute unless all steps which in circumstances were reasonable have been taken with a view to securing notice of application and an opportunity to be heard given to D?Court may fix a date for a further hearing with all parties present where D argues that injunction should be set varied or set aside. (this is the return date) Court may simply tell D that he can apply on notice for order to be varied or set aside. Notice is only 3 days (Part 25) so not long at all

BUT: If without notice then there must be:
? Full disclosure by C
? A return date set by the court If going without notice then must be a good reason:
? Extreme urgency
? Potential harm by D to C when he finds out you applied for injunction

?

(The reason must be justified in the Witness statement supporting the application)

Prospects of obtaining/opposing interim prohibitory order Injunctions C must comply with the usual equitable maxims are a Matters which might persuade the court to refuse include the discretionary following: remedy He who comes to equity must come with clean hands:

o o

o

Acquiescence:

o o o

o

No injunction will be granted if damages would be an adequate remedy: SCA = Senior Courts Act

o

o

o o

Special cases:

If C has behaved dishonestly or spitefully he may be refused an injunction D's behaviour and motivation is also a factor. If he has been harming C out of malice this may persuade the court to prevent an injunction in a borderline case Dishonesty on C's behalf could be an ulterior motive (e.g. put D out of business) C knew D was infringing his rights and failed to object, this led D to believe that C did not object Delay of itself is not enough. The delay must lead D to believe that he has not done any wrong and as a result of that belief he has acted to his detriment and it would not be unfair to allow C an injunction Just because an injunction was once appropriate doesn't mean it will be granted if there is a delay that will cause excessive damage and inconvenience S.50 SCA, court can award damages instead of (as well as in addition to) an injunction whether or not C applies for damages in statement of case Injunction will be granted where: i) There is serious harm which is likely to continue; or ii) Hard is irreparable or cannot be quantified in financial terms; or iii) D does not have means to pay damages If D has repeated his conduct on several occasions this is a good argument for an injunction Damages are rarely seen as adequate compensation where C is seeking to enforce a valid RC relating to land

Banking - injunction will not be granted to interfere with a bankers irrevocable letter of credit unless there is clear evidence of fraud Employment - s.236 Trade Union and Labour Relations (consolidations) Act 1992, court cant order specific performance of a contract of employment or an injunction to prevent a breach of such a contract where to do so would compel an employee to do any work or attend a place of work. Courts also reluctant to enforce restrictive covenants in a contract of employment by granting interim injunction (prefer a trial). Injunctions requiring employer to perform a contract of employment are also rare.

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