17. Interim Injunctions

Question 1

What interim remedies may be granted?

Answer 1

(a) An interim inunction
(b) An interim declaration
(c) An order:
a. For the detention, custody, or preservation of relevant property
b. For the inspection of relevant property
c. For the taking of a sample of relevant property
d. For the carrying out of an experiment on or with relevant property
e. For the sale of relevant property which of a perishable nature or which, for any other good reason, it is desirable to sell quickly; and
f. For the payment of income from relevant property until the claim is decided
(d) An order authorising a person to enter any land or building in possession of a party to the proceedings for the purposes of carrying out an order above in C
(e) An order to deliver up goods
(f) An order:
a. Restraining a party from removing from the jurisdiction assets located there
b. Restraining a party from dealing with any assets whether located within the jurisdiction or not
(g) A order directing a party to prove information about the location of relevant property or assets or to provide information about which are or may be te subject of application for a freezing injunction
(h) An order requiring a party to admit another party for the purpose of preserving evidence
(i) An order for disclosure of documents or inspection of property before a claim has been made
(j) An order for interim payment (except costs)
(k) An order for a specified fund to be paid into court or otherwise secured in a case where there is a dispute about a party’s right to it
(l) An order permitting a party seeking to recover personal property to pay money into court pending outcome of the proceedings and directing that, if he does so, the property shall be given up to him
(m) An order directing a party to prepare and file accounts relating to the dispute
(n) An order directing any account to be taken or inquiry to be made by the court
(o) And order on the enforcement of intellectual property rights

The fact that a remedy is not listed above does not affect any power the court may have to grant it.

The court may grant an interim remedy whether or not that has been a claim for a final remedy of that kind.

The court can order a party to produce documents at the hearing or on such date as a court may direct

Question 2

What does relevant property mean for CPR part 25?

Answer 2

Property which is subject to a claim or as to which any question may arise on a claim

Question 3

When may an interim remedy be made?

Answer 3

At any time, including before proceedings have started and after judgment.
However, this is subject to any rule, PD or enactment which provides otherwise; and
The court may grant an interim remedy only if the matter is urgent or it is otherwise desirable to do so in the interests of justice; and
A defendant may not apply for any of the orders before he has field either an acknowledgement of service or defence, except if a court orders otherwise.
Where a court grants an interim remedy before a claim has been commenced, it should give direction requiring a claim should be commenced (except for an order for disclosure, inspection e.c.t. before a claim)

Question 4

How does a party apply for an interim remedy?

Answer 4

On an application made without notice if there are good grounds for no notice.
It must be supported by evidence, unless the court orders otherwise
If the applicant makes an application without giving notice, the evidence in support must state the reasons why notice has not been given

Question 5

What is an interim injunction?

Answer 5

A court order prohibiting a person from doing something or requiring a person to do something before final judgment on the application for injunction.

Question 6

How should an interim injunction be applied for?

Answer 6

The claim form must specify the remedy the claimant seeks and should therefore include any claim for an injunction.
However, any party can make an application for it whether or not it was included in the party’s claim form/counterclaim.
It must be worded so that the person knows precisely what he is to be prevented from doing. If the applicant cannot, no injunctions will be granted.
In a claim where the party is acting as a representative party, it is binding on all persons represented in the claim, but only may be enforced against a non-party with the court’s permission.
In a without notice situation, if there is no evidence provided then there must be a real sense of urgency about the application.
It may be granted at any time.
Applicant is under a duty of full and fair disclosure.

Question 7

What role does jurisdiction play in the granting of injunctions?

Answer 7

Provided that the court has personal jurisdiction over the respondent, and subject to any statutory restrictions, the court has unlimited discretion to grant an injunction when it appears just and equitable to do so.

Question 8

Can there be an injunction granted even where there is no claim for substantive relief?

Answer 8

Yes.

Question 9

When will a court grant an injunction?

Answer 9

In accordance with usual practice (generally, though it can derogate).
Orders restricting freedom of expression require exceptional circumstances.
There is a greater reluctance to grant mandatory injunctions (requiring someone to do something) rather than prohibitory injunctions (preserving the status quo).
In dealing with an application for an interim injunction, the court must seek to give effect to the overriding objective of dealing with the case justly and at proportionate cost, including the sub objectives. The court, in such an application, should not attempt to resolve critical disputed questions of fact or difficult points of law. Delay in applying may be taken into account on whether the application is truly urgent. Equally, previous dissipation of assets (in a freezing order) may show a propensity to dissipate. Should also consider whether any passage of time was excusable or even necessary. (I,e, may take time to comply with duty of disclosure or to take advice).

Question 10

Can the county court make injunctions?

Answer 10

Yes, generally in any proceedings in the county, the court may make any order which could be made by the High Court if proceedings were in the High Court. There are restrictions.
The general power is that it can to do either conditionally or unconditionally in all cases it appears ‘just and convenient’ to do so.

Question 11

What are the initial questions when an application falls for consideration for an interim injunction?

Answer 11

1. Is there a serious question to be tried (threshold question)? If yes, then:
2. Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?
3. If not, where does the “balance of convenience” lie?

Question 12

What principles were given from American Cynamid?

Answer 12

1. The grant of an interim injunction is temporary and discretionary
2. The evidence available to the court at the hearing is incomplete (it is given in written and has not been tested)
3. It is not part of the court’s function to try to resolve conflicts of evidence on the written evidence as to facts on which the claims of either party may ultimately depend or to decide difficult questions of law (frequently stressed)
4. Where an application for an interim order to restrain a defendant from doing something which may infringe on the claimant’s rights is made upon contested facts, the decision must be made when the claimant’s rights are uncertain
5. The reason for interim injunctions is to mitigate the risk of injustice to the claimant
6. But this has been made subject to the claimant’s undertaking to pay damages in case of a loss at trial
7. The object of the interim injunction is to protect the claimant against injury where he could not be adequately compensated via damages, but this need for protection must also be weighed against the defendant’s need to not suffer damage that they cannot be adequately compensated for via damages.
8. The court must balance one need against another and determine where the balance of convenience lies.
9. There is no rule of law or practice that the court is not entitled to account of the balance of convenience unless it has first been satisfied that on the evidence adduced at the hearing on the balance of probabilities the acts of the other party would violate the applicant’s legal rights (i.e., if it’s urgent how the hell are they going to present all of the evidence. Question may have to be resolved via the balance of convenience instead. VERY SIGNIFICANT consideration)
10. However, the court must be satisfied that the claim is not frivolous or vexatious (i.e. that there is a serious question to be tried (VERY SIGNIFICANT consideration).
11. Thus, unless the evidence discloses any prospect of success, the court should not thereafter consider the balance of convenience in granting.
12. It would be exceptional to appeal in a case that turned on the balance of convenience.
    These principles are stated on the assumption that a trial is likely to take place. Where it is clear that it never would proceed to trial, additional considerations arise.

Question 13

What are the principles for granting quia timet injunctions (where the damage has not yet materialised)?

Answer 13

For those seeking quia timet injunctions (where the damage has not yet materialised), they must show there is a serious issue to be tried as to there being a real risk that the defendant intends, unless restrained, to undertake the activities sought to be enjoined. The court will not grant such an injunction just because the injunction would occasion no harm to the defendant.
The two necessary ingredients are:
1. That there is proof of imminent danger (a strong probability that, unless restrained, the defendant will act in breach of the defendant’s rights)
2. There must be proof that the damage would be very substantial (i.e. irreversible or restrained and cannot be adequately compensated by damages)

Question 14

What are the principles for granting injunctions where there is no possible defence to the claim?

Answer 14

There is no serious question to be decided at the trial. It is a misuse of the process of the court to withhold from the claimant an interim remedy to which they are obviously entitled. In such cases, the applicants are prima facie entitled to the injunction

Question 15

Can the court grant interim relief pending appeal?

Answer 15

Yes, if they are seeking to restrain some irreparable harm pending appeal

Question 16

What guidelines are there on the balance of convenience?

Answer 16

The below are guidelines, but do not fetter the discretion of the court.
1. The governing principles is that the court should first consider whether, if the claimant succeeds, they would be adequately compensated by damages from any refusal to grant an interim injunction. If they can, and the defendant would be able to pay, then no interim injunction should be granted.
2. If, on the other hand, damages would not be adequately, the court should consider whether any loss occasioned to the defendant could be adequately compensated by damages and whether the claimant could pay (does not bind the court to grant the application where they would be).
3. If there is a doubt to the adequacy of the respective remedies, the question of balance of convenience arises. The matters to take into consideration will vary from case to case.
4. Where other factors appear to be balanced it is a counsel of prudence to seek to maintain the status quo (prohibitory injunction)
5. The extent to which the disadvantage to each party would be incapable of being compensated in damages is always a significant factor in assessing the balance of convenience
6. If the extent of uncompensatable disadvantage to each party would not differ wildly, it may not be improper to take into account the relative strength of each party’s case as revealed by the written evidence adduced on hearing of the application. Should only be done where there is no credible dispute that the strength of one party’s case is disproportionate to the other’s.
Convenience has also be stated as the question “which course carries the lower risk of injustice”?
The court will consider all the circumstances of the case to “predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out the injunction should not have been granted or withheld”.
The willingness of the applicant to cross-undertake for damages is a very material consideration.

Question 17

What guidance is given on damages being adequate as a remedy for grant of interim relief?

Answer 17

The availability of adequate damages would normally preclude the grant of interim injunction. If that is not so, the court should consider whether there would be an adequate remedy in damages for the defendant. If so, there would be no reason to refuse to grant an interim injunction.
The nature and degree of harm and inconvenience for which an award of damages are inadequate may tip the scale.
A contractual limit on a limit of loss is not the only relevant loss (it is not only directly financial losses which may be relevant) and the pre-quantification of recoverable losses were not an agreed price to allow for one party to breach and any pre-quantification does not affect a claim for an injunction to restrain further breaches. Thus, pre-quantification does not stop an injunction to be granted.

Question 18

What guidance is there on preserving the status quo for interim injunctions?

Answer 18

It is a counsel of prudence to do so. However, it may incur the greater risk of injustice. Also, what is relevant is that the ‘status quo’ may have already changed so the court should be alive to this to not allow one party to get one over the other by changing the circumstances.

Question 19

What guidance is there on the relative strength of each party’s case?

Answer 19

It is a last resort when otherwise the balance is equal and only then when there is no credible dispute that the strength of one side is disproportionate to another. If a court is able to reach a conclusion on the applicant’s prospects of success, it is a counsel of perfect to expect the court to put that conclusion firmly on one side except for the limited purposes permitted.

Question 20

May an interim ruling have an effect on the subsequent progress of the proceedings?

Answer 20

Likely yes.
Cases can arise in which the grant or refusal of an injunction will, in effect, dispose of the action finally in favour of whichever party was successful in the application because there would be nothing left on which it was in the unsuccessful party’s interest to proceed to trial.
The degree of likelihood that a plaintiff would have succeeded in establishing his right to the injunction had the action gone to trial is a factor which should b brought into balance by the judge in weighing the risks of injustice.
So, when granting or refusing an interlocutory injunction will effectively end the action, it is appropriate for the court to investigate the degree of likelihood of the claimant succeeding at trial. This investigation need not and should not amount for a trial. It is for the judge to control the extent of the injury taken.
This may be affected by the length of the delay to trial.

Question 21

What are the principles on the question of granting a mandatory injunction?

Answer 21

The question is whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out the injunction should not have been granted or withheld. Court should take whatever course seems likely to cause the least irremediable prejudice to one party or the other.
The following principles apply:
1. The overriding consideration is which course is likely to involve the least risk of injustice if the grant or refusal turns out to be wrong
2. In considering whether to grant a mandatory injunction, the court should consider that an order requiring a party to take a positive step may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action
3. It is legitimate to consider whether the court does feel a high degree of assurance that the claimant will be able to establish this right at a trial.
4. But there may still be circumstances where it is right to grant it without the degree of assurance at an interim stage. These will exist where the risk of injustice in refusing sufficiently outweigh the risk if it is granted.

Question 22

What if a defendant gives an undertaking rather than an injunction?

Answer 22

If a defendant gives an offer of security and a consent order is made, the parties should thereafter be clear whether the application for the interim injunction is disposed of or simply adjourned (this may affect the grounds the defendant may later seek to release himself from the injunction and will be interpreted in light of the undertaking the defendant gives).
The court may refuse to make an injunction on payment of a certain sum of money on a running basis if it wishes to continue selling the products which would otherwise be subject to an injunction.

Question 23

What powers does the court have in relation to an undertaking?

Answer 23

As it is a solemn promise which a litigant volunteers, a court has no power to impose a different promise. If a party wishes to vary or change, it must apply for discharge or release to do so with evidence. A injunction may be thereafter enforced or a different promise made. It may be that a court only agrees to release the defendant if another promise is made.
In the absence of extraordinary circumstances, a claimant who has given an undertaking in order to obtain an injunction is not normally entitled to appeal against that undertaking., they can be released from it, but generally a change in circumstances should be shown.
The discretion to vary a promise is to be exercised in only certain circumstances and the same considerations apply to interim consent orders.

Question 24

What matters are of importance when considering whether to release a party from a promise?

Answer 24

The court regards of particular importance:
(1) The context the promise was made
(2) Whether the undertaking was
a. Required by, or offered to the court, independently of the agreement of the other party (of particular importance here is the importance of ensuring a solemn promise is observed unless and until the court sees fit to discharge or release
b. Part of a collateral bargain between the parties (of particular importance is the issue of justice as varying will deprive the other party of the benefit of the bargain they have made)

Question 25

What happens where a litigant wants to dispute the contents of an undertaking before an appeal court?

Answer 25

They can:
(1) Decline to give the undertaking, accepting the injunction will be refused
(2) Refuse to give the undertaking, but to invite the judge to make an order in equivalent terms of make it condition on fortification.
In either case, the refusal or condition may be challenged on appeal.

Question 26

What conditions can an interim injunction be made on?

Answer 26

Any the court sees fit, or unconditionally. Usually the claimant will have to give a cross-undertaking to compensate the defendant if he wins.

Question 27

In what applications does a cross-undertaking for damages to the respondent generally occur?

Answer 27

In interim injunction applications generally.

Question 28

Who is a cross-undertaking on an interim application given to?

Answer 28

The court.

Question 29

What is the importance of who the cross-undertaking on an interim application is made to?

Answer 29

As this is given to the court, not the applicant:
1. The proper interpretation of the cross-undertaking is not a matter of dividing the mutual understanding of the parties to the proceedings.
2. It may be enforced by one who is not a respondent where it is given for their benefit as well
3. When an undertaking is given but not complied with, the court must enquire why and what, if any, sanction or consequential order should be imposed.

Question 30

What is the undertaking an applicant for an interim order may give?

Answer 30

An undertaking to compensate people affected by the injunction if the case is not decided in the applicant’s favour. Given to the court.
May also be in the form of a security.

Question 31

What is the position when a public authority (I.e. the FSA) asks for an interim injunction?

Answer 31

There may be no undertaking required.

Question 32

What happens if no express undertaking is given within the terms of the interim order?

Answer 32

The court may enforce an implied undertaking, unless the contrary had been agreed and expressed at the time.

Question 33

What happens if there is only a limited cross-undertaking accepted? Can the court change this via implication?

Answer 33

There is generally no room for expansion via implication

Question 34

How does a court decide whether a cross-undertaking has sufficient value?

Answer 34

The court has to, if necessary, form a view as to the kind and degree of loss that may occur to balance this against the cross-undertaking offered.

Question 35

Can an undertaking be given that another claimant should be added for an interim injunction?

Answer 35

Yes, to enable them to give an undertaking as to damages. This undertaking is likely to be enforced, though the court retains a discretion to not.

Question 36

What occurs if the applicant is unable to offer a credible undertaking for an interim injunction?

Answer 36

The court will not deny a legally aided applicant an injunction simply that their undertaking would be of limited means. It may be a factor to take into consideration on how strongly the claimant believes in this claim.
If the claimant says they cannot or are unable to give an undertaking, the burden is on them to show that external funds are not available and why they should give an undertaking of a lesser amount. Can be stated as thus:
“has the applicant established on the balance of probabilities that no funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requirement of providing a meaningful cross-undertaking in damages”?

Question 37

In what form is an interim injunction applied for?

Answer 37

An N16 notice