4.1 Interim injunctions

Question 1

What is the difference between an interim injunction and a perpetual injunction?

Answer 1

An interim injunction is temporary and it is made before any final decision has been made on the merits of the claim. Generally it is only available in urgent situations.

A perpetual injunction is a final injunction with no limit on time.

Question 2

What are the three main classifications of injunction?

Answer 2

1. Prohibitory
2. Mandatory
3. Quia timet

Question 3

What is a quia timet injunction?

Answer 3

A quia timet injunction is an injunction granted where no wrong has yet been committed, although it is threatened. Quia timet literally translates as “because he fears”.

It can be mandatory or prohibitive.

Question 4

Under what circumstances can a quia timet injunction be granted?

Answer 4

London Borough of Islington v Elliott and another [2012] EWCA Civ 56
A quia timet injunction should not, ordinarily, be granted unless the applicant can show a strong probability that, unless restrained, the respondent will do something which will cause the applicant irreparable harm; that is to say, harm which, if it occurs:
1.
Cannot be reversed or restrained by an immediate interlocutory injunction.
2.
Cannot be adequately compensated by an award for damages.

Question 5

What are interim injunctions also known as?

Answer 5

Interlocutory injunctions

Question 6

Who can apply for an interim injunction?

Answer 6

CPR 25.1(4)

Either party, regardless of whether the claim was included in its original statements of case.

Question 7

At what stage in proceedings can an interim injunction be ordered?

Answer 7

CPR 25.2
(1)
An order for an interim remedy may be made at any time, including—
(a)
before proceedings are started; and
(b)
after judgment has been given.
(2)
(c)
unless the court otherwise orders, D may not apply for any of the orders listed in rule 25.1(1) before he has filed either an acknowledgement of service or a defence.

Question 8

What are the pre-conditions for the court to order an interim injunction before proceedings have started?

Answer 8

CPR 25.2(2)
(b)
the court may grant an interim remedy before a claim has been made only if -
(i)
the matter is urgent; or
(ii)
it is otherwise desirable to do so in the interests of justice

Question 9

What is the fundamental principle of the court’s power to grant interim injunctions?

Answer 9

It is within the court’s discretion to grant an interim injunction where it is just and convenient.

Section 37(1) Senior Courts Act 1981

Section 38(1) County Courts Act 1984

Question 10

When will a matter be “urgent” for the purposes of granting an interim remedy before a claim as been made, as per CPR 25.2(2)?

Answer 10

Bates v Lord Hailsham of St Marylebone [1972] 1 WLR 1373

Where it is impossible to give 3 days’ notice, and not because of delay by the party seeking the injunction.

Question 11

What counts as a “good reason” for granting an interim remedy without notice pursuant to CPR 25.3(1)?

Answer 11

Moat Housing Group-South Ltd v Harris [2006] QB 606
Circumstances must be “exceptional”.

National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16
The court should not entertain such an application unless:
1. giving notice would enable D to take steps to defeat the purpose of the injunction; or
2. there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act.

Question 12

How is the procedure for applying for an interim injunction different to other interim applications?

Answer 12

Procedures are relaxed:
1.
it can be made before issue of process (CPR 25.2(1));
2.
informal evidence can be relied on (25A PD 3.2);
3.
the court can make an order without a draft prepared by the applicant.

Question 13

Which non-statutory principles apply to the court’s powers to grant interim injunctions?

Answer 13

Equity, eg,
1.
He who seeks equity must come with clean hands;
2.
Delay defeats equity;
3.
Equity will not act in vain.

Question 14

Is it possible to sue for an injunction?

Answer 14

The Siskina [1979] AC 210

You cannot originate a claim for an injunction. Injunction applications must piggyback on a substantive claim.

Question 15

What is the leading case providing guidelines on when an interim injunction should be granted?

Answer 15

American Cyanamid Co. v Ethicon Ltd [1975] AC 396 (UKHL)

Question 16

What are the three stages in the guidelines laid down in American Cyanamid?

Answer 16

American Cyanamid Co. v Ethicon Ltd [1975] AC 396
1.
Is there a serious question to be tried?
2.
Adequacy of damages
(a)
Would the award of damages to the applicant be an adequate remedy if the respondent were not restrained?
(b)
Would the respondent by adequately compensated by a cross-undertaking in damages from the applicant?
3.
Where does the balance of convenience lie?
(a)
Where the balance of convenience is fine, maintain the status quo;
(b)
As a last resort, consider the merits of the claim.

Question 17

How can an applicant for an interim injunction show that damages to him would be an inadequate remedy, and so satisfy the second of the American Cyanamid criteria?

Answer 17

There are many reasons why damages may not be adequate, including:
1.
impecuniosity of the respondent;
2.
an irreparable wrong;
3.
non-pecuniary damage, eg, reputation, nuisance or trade secrets; or
4.
difficulty assessing damages.

Question 18

What factors can be weighed at the third stage of American Cyanamid - the “balance of convenience”?

Answer 18

American Cyanamid - all the possible factors cannot be listed. Factors to consider include:
1.
The prejudice to one side or the other;
2.
the likelihood of such prejudice;
3.
the extent to which it may be compensated by damages or an undertaking in damages;
4.
the likelihood of either party being able to satisfy the award;
5.
the likelihood that an injunction will turn out to have been wrongly granted or withheld.

Question 19

What were the facts and the decision in Cyanamid?

Answer 19

American Cyanamid Co. v Ethicon Ltd [1975] AC 396
Facts: C sought an interim injunction to stop D marketing a surgical suture in breach of patent. C’s product was already on the market but D’s was not yet.
Held: The balance of convenience favoured C.
C would lose the benefit of its patent and opportunities to expand its market if the injunction were not granted. D would not have to close any factories if the injunction were granted.

Question 20

What are the best two things an applicant can do to increase its chances of getting an interim injunction?

Answer 20

1.
Draft the order as narrowly as possible while still protecting its interests;
2.
offer an undertaking in damages.

Question 21

What should the court do when the balance of convenience is finely weighed in an application for an interim injunction?

Answer 21

American Cyanamid
Maintain the status quo. Generally this will mean the status quo before the respondent started the conduct which the applicant seeks to restrain. The court will be less sympathetic to late applications.

Question 22

When should the merits of the claim be considered?

Answer 22

American Cyanamid
1.
Only as a last resort, and
2.
Only where there is "no credible dispute" that one party's case is disproportionately stronger than the other's. (There should be no mini-trial.)

Question 23

Who is a cross-undertaking in damages made to?

Answer 23

25A PD 5.1

The court.

Question 24

What is the test for whether to grant an interim injunction that would effectively give final disposal of the claim?

Answer 24

NWL Ltd v Woods [1979] 1 WLR 1294
The broad principle that the court should avoid doing injustice applies. The court has to consider the underlying merits of the claim. The interim injunction is unlikely to be granted unless the claim is overwhelmingly likely to succeed.

Question 25

What are the equitable defences (“bars”) to a claim for an interim injunction?

Answer 25

1.
Acquiescence;
2.
Delay;
3.
Hardship;
4.
Clean hands;
5.
Equity does not act in vain;
6.
No order of performance or obedience which the court cannot enforce;
7.
Difficulty in compliance.

Question 26

Equitable defence: acquiescence. Meaning?

Answer 26

Jones v Stones [1999] 1 WLR 1739

Where C has acted to cause D to believe that there will be no claim and D has relied on this to its detriment.

Question 27

Equitable defence: delay. Meaning?

Answer 27

Johnson v Wyatt [1863] De G.J. & S. 18
Delay is more significant in interim applications than at trial.
There must be prejudice to D for the bar to arise.

Question 28

Equitable defence: clean hands. Meaning?

Answer 28

Hubbard v Vosper [1972] 2 QB 84

Inequitable conduct by C may bar the injunction.

Question 29

Equitable defence: Equity does not act in vain. Meaning?

Answer 29

A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109
“In vain” means there will be no practical benefit of an injunction.
Facts: C sought to restrain publication of documents that were already in the public domain.
Held: no injunction could be ordered.

Question 30

Equitable defence: “The court will not and ought not make an order performance or obedience to which it cannot enforce.”

Meaning?

Answer 30

Amber Size and Chemical Co Ltd v Menzel [1913] 2 Ch 239
Where the order relates to something unknown to the court or the respondent is a child and therefore cannot be committed to prison for breach.

Question 31

What must an interim application state?

Answer 31

25A PD 5.5

Any order for an injunction must set out clearly what the respondent must do or not do.

Question 32

What must an application for an interim injunction contain?

Answer 32

25A PD 2.1
The application notice must state:
(1)
the order sought, and
(2)
the date, time and place of the hearing.

25A PD 2.2 and 3
[Evidence]

23A PD 2.1 [standard interim application contents]
Title, name, address etc.

Question 33

What must an interim injunction order contain?

Answer 33

25A PD 5.1
Any order for an injunction, unless the court orders otherwise, must contain:
(1) [undertaking in damages]
… an undertaking by the applicant to the court to pay any damages which the respondent sustains which the court considers the applicant should pay,
(2), (3), (4) and (5)
[undertakings to complete the normal steps for applications which may have been skipped in order to swiftly get an interim injunction.]

[authority?}
A penal notice

Question 34

What must an interim injunction order contain if the application was made without notice?

Answer 34

25A PD 5.1(2)
[undertaking or order to give notice]
if made without notice to any other party, an undertaking by the applicant … to serve … the application notice, evidence in support and any order made as soon as practicable

Question 35

What must an interim injunction order contain if made without notice to any other party?

Answer 35

25A PD 5.1(3)
[with notice hearing date]
if made without notice to any other party, a return date for a further hearing …

Question 36

What must an interim injunction order contain if made before filing the application notice?

Answer 36

25A PD 5.1(4)
[undertaking to file notice]
if made before filing the application notice, an undertaking to file and pay the appropriate fee on the same or next working day,

Question 37

What must an interim injunction order contain if made before issue of a claim form?

Answer 37

25A PD 5.1(5)
[undertaking to issue claim form]
if made before issue of a claim form—
(a)
an undertaking to issue and pay the appropriate fee on the same or next working day, or
(b)
directions for the commencement of the claim.

Question 38

What is the difference between the threshold test for mandatory and prohibitory injunctions?

Answer 38

There is no difference but the balance of convenience test leads courts to be generally more willing to grant prohibitory than mandatory injunctions.