17. Interim Injunctions

Question 1

Will an injunction be granted if the applicant cannot articulate precisely what the subject of the injunction must/cannot do (e.g. can’t specify the exact boundaries of land to which the injunction relates)?

Answer 1

No - very important that it is precise

Question 2

What is required if an injunction is sought on a without notice application with incomplete evidence?

Answer 2

There has to be a real urgency for the injunction, particularly where an early effective hearing date is available

Question 3

Is the court’s jurisdiction to grant an injunction subject to any limitations?

Answer 3

• No - provided the court has personal jurisdiction over the respondent, the court has unlimited discretion to grant an injunction where it appears just and equitable to do so
• Can even be granted where there is no claim for substantive relief - e.g. order for costs, against a third party who holds or controls D’s assets, or in support of foreign proceedings
• But n.b. the American Cyanamid case laid down a test to be applied by the courts to determine whether an interim injunction should be granted

Question 4

Which case laid down the procedure and test for the grant of interlocutory/interim injunctive relief?

Answer 4

American Cyanamid Co v Ethicon

Question 5

What are the three questions that fall for consideration according to the American Cyanamid Co case?

Answer 5

(1) Is there a serious question to be tried (i.e. ‘is the applicant’s case not frivolous or vexatious?’)? If yes –>

(2) Would damages be an adequate remedy for a party injured by the court’s grant, or its refusal to grant, an injunction?

(3) If not, where does the “balance of convenience” lie?

Question 6

What must NOT happen at an application for an interim injunction?

Answer 6

There must not be a mini-trial of the case. This is also why it is now no longer required to show a prima facie case in order to successfully obtain an injunction. Although the court must be satisfied that the claim is not vexatious or frivolous (i.e. ‘there must be a serious issue to be tried’), the applicant does not have to convince the court that they are likely to succeed at trial.

Question 7

What are the two ingredients that MUST be present for the grant of a quia timet injunction?

Answer 7

(1) If no actual harm is proven, there must be proof of imminent danger (i.e. a strong probability that, unless restrained, D will act in breach of C’s rights); and

(2) There must be proof that the damage, if it comes, will be very substantial - must be such that it cannot be reversed or restrained by an immediate interim injunction and cannot be adequately compensated by damages

Question 8

When will a claimant be prima facie entitled to an injunction?

Answer 8

If there is no possible defence to the claim (i.e. where it’s not really a genuinely contested trial) - would be a misuse of the process of the court to deny them the injunction in those circumstances

Question 9

Can interim injunctions be used to protect parties pending an appeal?

Answer 9

Yes - if a party has been unsuccessful and is now appealing the decision an injunction can be granted to protect their rights pending the appeal (subject to all the usual requirements for an injunction). The fact that they were unsuccessful in establishing their rights in the trial is no obstacle to the injunction.

Question 10

Describe the ‘guidelines’ laid down by Lord Diplock in American Cyanamid regarding how the court should assess adequacy of damages in determining whether an injunction should be granted?

Answer 10

N.B. these guidelines should not be read as fettering the court’s broad discretion

(1) Start by asking whether damages would adequately compensate the claimant if they are ultimately successful at trial and an injunction has been refused

• If yes -> no injunction should be granted, however strong C’s claim appears
• If no -> consider whether the defendant would be adequately compensated under the undertaking that that C would give if they were granted an injunction (important to consider both the sum promised in the undertaking and the likelihood that C could actually pay this when the time comes). If these would be adequate, the injunction should be granted.

(2) If neither party would adequately be compensated by damages (i.e. if there is ‘doubt’ as to the adequacy of damages), then the court has to consider the balance of convenience

• Highly fact-sensitive
• If all factors appear evenly balanced the court should strive to maintain the status quo
• Very important to keep in mind the extent to which either party can be compensated by damages
• If balance is very equal, it may be appropriate to take into account the strength of the parties’ cases, but only to the extent that this is revealed by facts which are not in dispute (i.e. no mini-trial): this is a consideration of last resort
• Also important to consider when the trial will take place, as the interim injunction will generally last until then (i.e. what is the running time of the injunction) - this matters because particularly long-lasting injunctions may well have knock-on effects that are difficult to quantify (e.g. being kept out of the employment market for a really long time makes you less employable, so you are losing more than just earnings during the time of the injunction itself)

Question 11

In what circumstances is it appropriate for the court to consider the likelihood of the claimant succeeding at trial?

Answer 11

We’ve already seen that this is appropriate if the court is considering the balance of convenience and the cases is very finely balanced.

Another important situation is where the grant of the interim injunction will effectively bring the case to an end (e.g. because it is no longer in D’s interest to continue). In such a case, the court should give weight to the practical realities of the effect of an injunction. But again, should not conduct a mini-trial - up to the judge to control the extent of the inquiry undertaken.

Question 12

How different, if at all, are the considerations applicable to mandatory injunctions compared to those that apply to prohibitive injunctions?

Answer 12

Not really any different (used to be said that the threshold for mandatory injunctions is higher, but that’s not actually true)

The only possible, slight difference is that the courts seem slightly more willing to consider the likelihood of C succeeding at trial in mandatory injunctions cases, because mandatory injunctions are viewed as more onerous. But even where the court is not sure that C will succeed at trial, a mandatory interim injunction may still be appropriate.

Question 13

Describe the role of undertakings in dealing with interim injunctions.

Answer 13

• Undertakings are promises given by litigants to the court.
• We’re already seen that the claimant will have to give an undertaking if they are granted an injunction
• However, undertakings can also be used in other ways. The defendant can offer to make an undertaking in an attempt to convince the court not to grant an injunction. Similarly, the court may make conditional orders such as ‘either you give an undertaking or injunction x, y, z’ will be imposed

Question 14

Can a court impose a variation of an undertaking?

Answer 14

No - the way to deal with changes is that if the litigate desires a change of terms of the undertaking, they must make an application to the court to be released from the previous undertaking accompanied by a new undertaking that they are offering to make. The court can grant the release on condition that they make the proposed new undertaking (or a different new undertaking).

Question 15

Is it possible to appeal an undertaking that you have given?

Answer 15

No (obviously this wouldn’t make sense - it’s a promise that you made).

But you can apply to be released from it - generally that will only be successful if you can show a change in circumstances.

Question 16

Can a claimant obtain an injunction without giving a cross-undertaking as to damages?

Answer 16

No - although undertakings are technically given voluntarily, PD25A requires C to give an undertaking in respect of losses incurred by D as a prerequisite for obtaining an injunction. Additionally, the court must also consider whether C should give an undertaking in respect of losses incurred by anyone other than D

N.B. the court can grant an injunction without an undertaking if the claimant is so impecunious that they really can’t pay

Question 17

Why is it significant that an undertaking is a promise given to the court rather than to a party to the proceedings?

Answer 17

Several consequences flow from this:

(1) When interpreting undertakings you are NOT trying to find out what the parties meant.

(2) If an undertaking is not complied with there must be an enquiry by the court as to why that happened and what, if any, sanction or consequential order should be imposed

(3) The court retains a discretion not to enforce an undertaking

Question 18

Do public bodies that are exercising a public duty of law enforcement by bringing proceedings have to provide a cross-undertaking when seeking an interim injunction?

Answer 18

No - unlike parties engaged in private litigation, such claimants don’t have to provide undertakings

Question 19

Can a court compel the giving of an undertaking?

Answer 19

Not technically, but it can refuse to order an injunction unless an undertaking is given

Question 20

What can an undertaking be fortified by?

Answer 20

Giving security

Question 21

What do you do regarding cross-undertakings if an applicant for an injunction is impecunious?

Answer 21

• The fact that they may not be able to fully compensate D in the end is not automatically fatal to their application for an injunction
• Ultimately, the court will have to consider the case holistically
• If an applicant argues that they can’t give an undertaking of sufficient value due to limited means the burden is on them to prove this
• Guidance may be derived from the approach to stifling further participation in proceedings by ordering security of costs: ‘Has the applicant established on the balance of probabilities that no funds would be made available to it, whether by its owner (if a company) or by some other closely associated person, as would enable it to satisfy the requirement of providing a meaningful cross-undertaking in damages?’