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LPC Law Notes Commercial Dispute Resolution Notes

Prohibitory Injunctions Notes

Updated Prohibitory Injunctions Notes

Commercial Dispute Resolution Notes

Commercial Dispute Resolution

Approximately 305 pages

A collection of the best Commercial Dispute Resolution notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Commercial Dispute Resolution notes available in the UK this year. This collection ...

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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?
  • 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)

Types:

Prohibitory/negativeprevents D from taking certain steps (e.g. soliciting customers of C)

Mandatoryrequire 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)

  • 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

General principles for applying to injunctions: always mention this in the exam answer

C must have locus standi (interest + cause of action)

  • Maatshappij De Zeven Provincien VN – C must show that D is either:

    • Threatening to invade (or has invaded) C’s legal or equitable rights

    • 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

Courts powers:
  • 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

Apply to court for contempt

Individuals

  • Contempt of courts (can include committal to prison)

  • Fine

Company or corporate body

Assets can be seized (sequestration)

Non parties for knowingly assisting in breach of an injunction

Criminal offences:
  • 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:

    • Offence was created to protect a particular class of people; and

    • He is a member of that class; and

    • He has suffered special damage as a result of D’s crime

Breaches of Treaty of Rome:
  • 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:

    1. The requisite fee

    2. An additional copy of the notice for each party

    3. A copy for the court

    4. A copy of the draft order sought, in all but the most simple application (PD 23A)

    5. The N244 must be served at least three clear days before the hearing, unless another time limit is specified.

Procedure for obtaining interim prohibitory injunctions

CPR Part 25 – injunctions

CPR Part 23 – interim application

  • 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...

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