5: Obtaining pre-action remedies

Question 1

What type of injunctive relief must be sought from a High Court judge?

Answer 1

Freezing injunctions and search orders.

Question 2

What is an interim injunction?

Answer 2

An interim injunction is a temporary version of the type of injunction the applicant would seek at trial.

Question 3

Why are injunctions a ‘high-risk strategy’?

Answer 3

Injunctions can end an action as it starts and are at the top end of the tactical ‘weaponry’ a party can use.

Question 4

What are the three types of injunctions?

Answer 4

Mandatory
Prohibitory
Preventative

Question 5

What is a mandatory injunction?

Answer 5

It requires the other side to take action to do something.

Question 6

What is a prohibitory injunction?

Answer 6

It prevents someone from taking certain steps.

Question 7

What is a preventative injunction?

Answer 7

It requires the other side to take steps to prevent harm occuring.

Question 8

What is the name of the case that governs the granting of interim injunctions?

Answer 8

American Cyanamid Co v Ethicom Ltd [1975]

Question 9

What are the four main principles taken from American Cyanamid around interim injunctions?

Answer 9

1. Is there a serious question to be tried?
   (Is it more than a frivolous claim?)
2. Where does the balance of convenience lie?
   (Is it worse for the claimant to lose out than the defendant in this situation, e.g. stopping D from releasing derogatory material around C is better for the C and shouldn’t affect D)
3. Are there any special factors that ought to be taken into account?
4. Would an award of damages be an adequate remedy?
   (If so and the defendant is in a financial position to pay them, no interim injunction should normally be granted.)

Question 10

Where can you find the relevant guidance from the CPR around interim injunctions?

Answer 10

Practice Direction 25A (PD 25A)

Question 11

What must you advise your client if they are applying for an injunction?

Answer 11

That they will have to give an undertaking in damages to the defendant for any loss suffered as a result of the injunction, should it transpire that it ought not that have been granted in the first place. (para 5.1(1) PD 25A)

Question 12

Should the American Cyanamid principles be applied rigidly?

Answer 12

No, there must be some flexibility in connection with granting injunctions as they are discretionary remedies.

Question 13

When would the American Cyanamid principles not apply?

Answer 13

In applications for freezing injunctions and search orders (paras 6.1 and 7.1 PD 25A).

Question 14

How long could it take to obtain an injunction for a serious matter and if all evidence is in place?

Answer 14

It is possible to obtain an injunction in as little as 48—72 hours after the client becomes aware of the breach or serious threat to their legal rights.

Question 15

Can you ask a judge for an injunction outside normal office hours, over the phone or at their home?

Answer 15

Yes, if it is a serious enough breach or threat to someone’s legal rights.

Question 16

What is a ‘without notice order application’?

Answer 16

An application to make an injunction against a respondent, without giving notice to the respondent first.

Question 17

If the injunction order is made by the court on a without notice application, what must be done immediately?

Answer 17

The order must be personally served on the defendant extremely quickly and another hearing will be arranged for a short time later.

Question 18

What is a ‘return’ hearing?

Answer 18

When an injunction is made before the person affected by it is told, the court will list a hearing so they can object to the making of the order if they want.

Question 19

What does PD 25A set out as the 3 requirements for an application for an interim remedy to be made?

Answer 19

Filing the application notice and a draft of the order (also on disk/digital copy) (para 2.4 PD 25A)
Paying the relevant court fee
Observing the rules of service.

Question 20

What must search orders and freezing injunctions be supported by in the application?

Answer 20

Affidavit evidence.

Question 21

What must other interim injunctions (other than search orders and freezing injunctions) be supported by in the application?

Answer 21

Just evidence, either in a witness statement, a statement of case or the application notice itself. These must all be verified by a statement of truth.

Question 22

What is affidavit evidence?

Answer 22

A written statement of evidence which is sworn before a person authorised to administer affidavits. Different to the usual evidence verified by a statement of truth, because this one has to be done by a notary.

Question 23

What must be included on and done to the injunction for the respondent?

Answer 23

The injunction must be endorsed with a penal notice when drawn up and must be personally served to the defendant.

Question 24

What is a penal notice?

Answer 24

A penal notice is a warning to the defendant that disobedience to the order may be punishable by imprisonment, a fine, confiscation of assets or other punishment.

Question 25

Why must an injunction be endorsed with a penal notice when drawn up?

Answer 25

Breach of an injunction is a contempt of court for which the defendant can be committed to prison.

Question 26

If contempt proceedings are brought for a breach of an injunction, what could happen to the defendant?

Answer 26

They may be committed ot prison for up to two years, be fined or may have their assets seized.

Question 27

What are the 6 grounds on which a defendant can seek to discharge an interim injunction in an application to a judge of the division or court in which the claim in proceeding?

Answer 27

1. material non-disclosure on a ‘without notice application’
2. failure by the claimant to comply with the terms upon which the injunction was granted;
3. the facts do not justify interim injunctive relief;
4. the injunction is oppressive;
5. material change in the circumstances of the parties or in the law since the injunction was granted; and
6. the claimant has failed to prosecute the substantive claim with due speed.

Question 28

What is a freezing injunction?

Answer 28

A freezing injunction is designed to freeze the assets of a defendant if there is a risk that they may dispose of these assets before the claim proceeds to trial.

Question 29

What is a freezing injunction also known as?

Answer 29

Mareva injunction, based on a 1975 case.

Question 30

What notice is given with freezing injunctions?

Answer 30

Freezing injunctions rely on secrecy for their effectiveness, so any application would be made without notice to the respondent.

Question 31

Who deals with freezing injunctions applications?

Answer 31

A High Court judge.

Question 32

Which documents must be submitted at least two hours before the freezing injunction hearing?

Answer 32

1. The application notice
2. Any statements of the case
3. copies of all relevant affidavits and exhibits (affidavits are required as opposed to witness statements, although in urgent cases informal evidence can be used)
4. any relevant previous orders in the case
5. a skeleton argument or summary
   6.if it would help, a chronology

Question 33

What are the requirements for applying for a freezing order?

Answer 33

1. There is a cause of action justiciable in England and Wales
2. The claimant has a good arguable case
3. There is a real risk that the defendant may dispose of or dissipate those assets before judgement can be enforced
4. The defendant has assets within the jurisdiction.

Question 34

What must be stated on the freezing order?

Answer 34

The assets that will be frozen
How long the injunction will last
How the respondent is entitled to discharge the injunction.

Question 35

What happens if third parties are involved in a freezing order?

Answer 35

The third parties must be notified of their right to apply to the court for directions or for a variation of the order.

Question 36

What is a search order?

Answer 36

A search order is a specific type of without notice order against the defendant, which allows the claimant to search for and seize evidence which would otherwise be destroyed if the defendant would not obey rules relating to disclosure.

Question 37

What is a search order also known as?

Answer 37

Anton Piller order

Question 38

How does CPR r25.1(1)(h) define a search order?

Answer 38

CPR r25.1(1)(h) defines a search order as an order under s7 Civil Procedure Act 1997, which empowers the court to make an order for the purpose of securing, in existing or proposed proceedings:

• the preservation of evidence which is or may be relevant; and
• the preservation of property which is or may be the subject matter of the proceedings or to which any question arises or may arise in the proceedings.

Question 39

What kind of injunction is a search order?

Answer 39

A special type of mandatory injunction, usually used against alleged infringements of copyrights, patents and trademarks, including video/audio pirating.

Question 40

Would a judge grant a search order freely?

Answer 40

No, only if there is no alternative. It is regarded as a ‘relief of last resort’.

Question 41

Will a respondent have notice of a search order application?

Answer 41

No, it will be a without notice application. It will usually be made after the issue of the claim form, but before the claim is serviced to the respondent.

Question 42

Who will a search order application go to ?

Answer 42

High Court judge

Question 43

What three documents must be included in a search order application?

Answer 43

1. the claim form or draft claim form (and any statements of case that exist)
2. affidavit or draft affidavit (not witness statements)
3. draft of the proposed order.

Question 44

Can a search order have other interim relief applications entered at the same time?

Answer 44

Yes, other interim relief may be sought at the same time, e.g. with a freezing injunction for audio or video pirating cases.

Question 45

What are the 3 basic requirements that must be satisfied before the court may grant a search order?

Answer 45

1. There must be an extremely strong prima facie case on the merits.
2. The defendant’s activities must cause serious (potential or actual) harm to the claimant’s interests.
3. There must be clear evidence that the incriminating documents or things are in the defendant’s possession and that there is a real possibility that such material may be destroyed before any on notice application can be made.

Even if these three requirements are met by the claimant, the granting of the order is still at the discretion of the court.

Question 46

What key points should you be aware of when considering with your client whether to apply for an injunction?

Answer 46

1. Expense
2. Whether damages would be an adequate remedy
3. Whether the application will bully the opponent
4. Undertaking of damages to defendant
5. Urgency
6. Full and frank disclosure on a without notice application
7. American Cyanamid principles

Question 47

What is a pre-action disclosure?

Answer 47

An order obligating the party likely to be the defendant to make certain disclosures before the claimant issues the claim form.

Question 48

What is the notice requirements of pre-action disclosure?

Answer 48

The party intending to apply for the remedy should warn the other party in writing first, with a view to the voluntary provision of the information requested.

Question 49

What happens if an informal warning letter is not sent first before pre-action disclosure?

Answer 49

If an informal warning letter is not sent, the party making the application may not succeed and may also be punished by way of a costs sanction.

Question 50

Where do the court’s powers come from in relation to pre-action disclosure?

Answer 50

Under s33 Senior Courts Act 1981 and s52 County Courts Act 1984, the court has the power to order a person who appears likely to be a defendant in subsequent proceedings to disclose documents to the proposed claimant before a substantive claim is issued.

Question 51

What are the prerequisites for an application for pre-action disclosure be made?

Answer 51

• the application is by and sought against parties who are likely to be party to a subsequent action.
• the application relates to documents that fall within the definition of standard disclosure.

Question 52

What 3 kinds of scenarios lend themselves well to pre-action disclosure applications?

Answer 52

Clinical negligence cases where the validity of the claim is uncertain, until medical records are seen by a medical expert.

Personal injury cases where safety documents are in the possession of the employer where an employee has been injured at work.

Road traffic accidents where documents about the condition of the vehicle are in the possession of the driver.

Question 53

What are the 7 steps in the procedure for pre-action disclosure?

Answer 53

1. Complete an Application Notice (Form N244)
2. File Application Notice and supporting evidence and pay issue fee.
3. The court sets a date for a hearing.
4. The notice and evidence are served on the respondent three days before
5. Respondent may file evidence in reply
6. The hearing will be public and representations made should be based on the written evidence previously submitted.

Question 54

What is the name of the Application Notice form and what purposes is it used for?

Answer 54

Form N244 - for all sorts of applications to the court, e.g. pre-action disclosure, seeking default or summary judgment, request for further information, interim hearing evidence, specific disclosure, used whether or not any notice is given to other parties.

Question 55

What would be within the Application Notice?

Answer 55

The order sought (e.g. pre-action disclosure)
Brief reasons for the application
Full name of the applicant
Details of your firm with the address for service
A request for a hearing date
Signed statement of truth at the end of the form.
Attach a copy of the draft order you are seeking to the completed Form N244.

Question 56

Where should the application for an order be made?

Answer 56

It should be made to the court where it is likely the claim will be started.

Question 57

What are the two options for the court serving copies?

Answer 57

Either:

1. The court will serve copies on the respondent with one copy to you as acting for the client

OR

2. The court will return copies to you for service, retaining one for the court.

Question 58

How soon should the notice and accompanying evidence of an application be served on the person against whom the order is sought?

Answer 58

As soon as is practicable and in any event, at least three clear days before the hearing.

Question 59

What CPR part is non-party disclosure governed by?

Answer 59

Part 31

Question 60

What is non-party disclosure?

Answer 60

The making of orders for disclosure against a person who is not a party to the proceedings at hand. E.g. a bank is asked to disclose information or documents held in relation to an account holder, such as their name, address and banking history.

Question 61

What does the court have jurisdiction to order in terms of non-party disclosure?

Answer 61

Notably, the court only has jurisdiction to order non-party disclosure where the documents sought are likely to either support the case of the applicant or adversely affect the case of one of the other parties to the proceedings, and disclosure is necessary to dispose fairly of the claim or to save costs.