Injunctions Flashcards
What does Section 37 Senior Courts Act, 1981 relate to?
Interim or final injunctions
Section 37 (1) Senior Courts Act, 1981?
Injunctions can be interlocutory / interim or final
Section 37 (2) Senior Courts Act, 1981?
injunctions can be made with conditions or unconditionally
When can the High Court grant an injunction?
Where it is “just and convenient” to do so
What type of remedy is an injunction?
An equitable remedy / discretionary / not available as a remedy of right
What test did American Cyanamid Co v Ethicon Ltd 1975 set out?
- There is a serious
issue to be tried. - Damages would be an adequate remedy.
- Where the “balance of convenience”, lays?
What does a serious issue to be tried mean? American Cyanamid Co v Ethicon 1975
That there are real prospects of success.
In relation to an interim injunction the claim has substance
It’s not frivolous or Vexatious
It is not necessary to show the final injunction is more likely than not to be obtained
What consideration did the court give in American Cyanamid Co v Ethicon Ltd 1975 to damages being an adequate remedy?
- Whether the damages are an adequate remedy from the applicants point of you
- Consideration of the parties financial positions
- Whether damages are an adequate remedy from the respondents point of you
What did the court give consideration to when looking at the balance of convenience in American Cyanamid Co v Ethicon Ltd 1975
The court is to weigh the respective inconvenience or loss to each party if an interim injunction is granted or not
What FACTORS did the court consider when weighing up where the balance of convenience lays in American Cyanamid Co v Ethicon Ltd 1975
- Deprivation of employment
- Importance of preserving confidential information
- Damage of goodwill to the business
- And attitude and conduct of the parties
Which CPR PD sets out the procedural rules for Interim injunctions
CPR PD 25A
What power does CPR 44.1 provide the court with?
The Court has discretion to award costs.
CPR 44.1
a)  To determine whether the cost of payable by one party to another?
b) if so, how much?
c) When costs are to be paid
Which section and statue gives the court discretion to allow recoverability of costs in relation to injunction applications?
Section 51 Supreme Courts Act 1981
Which part of the CPR provides the General Rule that the unsuccessful party pays the successful party’s costs?
CPR 44.2 (2) (a)
What does CPR 44.2 (2) (b) allow the court to do?
The Court may make a different order relation to costs for example where there is no successful party
Which 3 situations are there to consider in relation to costs relating to injunction applications?
- Balance of convenience
- Defendant Successfully resists an injunction
- Quia Timet
What usually happens to costs where an interim injunction has been granted, or agreed by consent, on thr balance of convenience?
Cost should usually reserved until trial of the substantive issue because there is no successful or unsuccessful party at the point me injunction is made, For the purposes of CPR 44.2 (2) (a)
 which case sets out the traditional approach that cost should be reserved where the injunction has been granted on the balance of convenience?
Desquenne et Giral UK Ltd v Richardson 1999
What did Picnic at Ascot v Derigs 2001 consider?
Applied Desquennes et Giral UK Ltd v Richardson 1999
Acknowledge the basic position that costs are normally reserved in the absence of special factors.
What 6 Special Factors did Picnic at Ascot v Derigs 2001 set out?
- Defendant who agrees to an interim injunction should not be subject to more disadvantageous costs order
- There will be cases where the balance of convenience is clear that the Case against the defendant was clear and costs order should be made for wasting time and money
- Case may not go to trial - And undecided cost may make settlement more difficult
- Where the court takes substantive merits into account without evidence having been tested at trial it must be careful before taking them into account on the question of costs
- It may be that a defendant who is successful in resisting an interim injunction or find it easier to persuade the court because he made in his favour since he had no choice but to come to court
6. Ultimately the judge should ask whether it is unfair for the claimants to have their costs of the application even if they go onto lose a trial and whether the opposition to the application was justified.
Which 2015 case followed the approach in Picnic at Ascot and what does it determine?
Hospital MetalCraft Ltd v Optimus British MetalCraft 2015
Where it is not possible to measure success the cost should be reserved
Each case will be judged on its own facts
Which 2014 case adopted a Modern approach / pay-as-you-go principal
Taylor v Burton 2014
What was the pay-as-you-go principal / Modern approach adopted in Taylor v Burton 2014?
Where is in time is gone by costs in the case /  that the successful party at the final hearing will be awarded costs, were are commonly made nowadays they are more rarely made and the winner of an interim application will come in if you ordered his costs regardless of what happens at trial
What did Digby v Melford Capital 2020 firmly set out ?
That Desquenne & Picnic at Ascot represent the law
Costs Interim applications should be reserved to be decided at the final hearing save where special factors justify an alternative approach
What does the White Book summarise in relation to costs orders and interim injunction applications?
Where an interim injunction is granted the court Will normally reserve costs in the application until the determination of the substantive issue
However the court hands are not tied
And if special factors are present in order for cost may be made and those costs are merrily assessed
How does Digby v Melford Capital 2020 assist a defendant who agrees to an injunction on short notice
It may be a pragmatic approach to agree an injunction at short notice and this may provide strong grounds for the court to reserve costs to the end of the trial
Just because the defendant agrees to an injunction being made Does not mean they should be subject to a disadvantageous course order
Parties agreeing sensible arrangements , such as in Digby, should be assured that costs are likely to be reserved 
What scope do the Picnic at Ascot factors provide for arguments about an order for immediate payment of costs / Summary assessment of costs?
- Defendant who agrees to an interim injunction should not be subject to more disadvantageous costs order
- There will be cases where the balance of convenience is clear that the Case against the defendant was clear and costs order should be made for wasting time and money
- Case may not go to trial - And undecided cost may make settlement more difficult
- Where the court takes substantive merits into account without evidence having been tested at trial it must be careful before taking them into account on the question of costs
- It may be that a defendant who is successful in resisting an interim injunction or find it easier to persuade the court because he made in his favour since he had no choice but to come to court
- Ultimately the judge should ask whether it is unfair for the claimants to have their costs of the application even if they go onto lose a trial and whether the opposition to the application was justified.
Does Digby v Melford Capital 2020 make it easier or more difficult for claimants to obtain costs orders at the end interim relief hearings?
Undoubtedly more difficult but not impossible.
The Picnic at Ascot factors provide scope for arguments about an order for immediate payment of costs in specific Scenarios
If a defendant has successfully resisted an injunction being made what may they expect the court order in relation to costs
A defendant has successfully resisted an injunction may expect the court order his costs of the application to be paid by the applicant
What does the case of Interflora v Marks & Spencer 2014 support.?
The general rule as set out in CPR 44.2 (2) (a), That be unsuccessful party pays the successful parties costs, Should apply where the application for an injunction is a freestanding application.
In this case the applicant had failed and there was no reason why the court should depart from the general rule
What type of injunction means because he fears?
Quia Timet
What is a Quia Timet injunction?
These injunctions are granted to restrain wrongful acts which are threatened or eminent but not yet commenced.
The court has the power to make me injunction before the damage is taken place
Which case considers the approach to recoverability of costs where a Quia Timet injunction is made?
Merck Sharp Dohme Corp v Teva Pharma 2013
What did Merck Sharp Dohme Corp v Teva Pharma 2013 decide?
The court held for the general rule to be ignored the applicant needs to justify coming to court by showing that there was sufficient strong possibility that the injunction would be required to prevent harm to the applicant
How may Picnic at Ascot v Derigs Co 2001 be useful where a Quia Timet injunction has been granted?
Picnic at Ascot sets out Special Factors Where it may be possible for the court to depart from the General Rule,
E.G Where the court feels that by the time of the trial it may become clear that the injunction was not needed at the applicant says there was a threat when it commenced proceedings
Which CPR section provides for the procedure for assessing costs by way of Detailed Assessment or Summary Assessment
CPR 44.6
What does CPR 44.6 (1) (a) provide?
Where the Court order a party to pay costs it MAY make a summary assessment of those costs
What CPR PD para. provides that the Court SHOULD consider summary assessment where not ordering fixed costs?
CPR PD 44 Para 9.1
What do CPR PD 44 para 9.2 a) and b) provide?
The general rule is that the Court should make a SA at:
a) the conclusion of a FT trial and
b) at the conclusion of any other hearing lasting less than a day
UNLESS there is good reason not to do so
What CPR PD para. sets out that SA is the usual procedure for interim applications which are disposed of in no more than 1 day
CPR PD 44 para 9.2 a) and b)
The general rule is that the Court should make a SA at:
a) the conclusion of a FT trial and
b) at the conclusion of any other hearing lasting less than a day
UNLESS there is good reason not to do so..
What may constitute good reason not to summarily assess at the conclusion of a FT trial or at the conclusion of a hearing lasting less than a day under CPR PD 44 para 9.2 a) and b)
E.G. Where the PP shows substantial grounds for disputing the sum claimed so costs cannot be dealt with summarily
Under which CPR PD para do the parties have a duty to assist the Court when making a summary assessment of costs?
CPR PD 44 Para 9.5 (1) Duty to Assist
What does CPR PD 44 para 9.5 (3) provide?
N260 / Statement of Costs / Schedule of Costs
Each party intending to claim costs must prepare and file either a Statement of Costs (N260) or a schedule of costs
What are the timeframes as set out in CPR PD 44 para 9.5 (4) for filing a Statement of Costs (N260) or schedule of costs?
Not less than 2 days before a FT trial or Not less than 24 hours before any other hearing
What does CPR PD 44 para 9.6 provide
Any failure to comply with filing an N260 Statement of Costs or Schedule of costs, not less than 2 days before a FT trial or Not less than 24 hours before any other hearing WILL BE CONSIDERED when looking at the costs
What authority does the Court have to adjourn the SA to a further hearing if it cannot consider the SA at the end of the hearing, EG if it runs out of time?
CPR PD 44 para 9.7 Adjourn / Same judge
If the Court cannot summarily assess costs at the end of a hearing, it may adjourn the SA to a further hearing before the same judge
What does CPR PD 44 para 9.10 provide?
Disproportionate / Unreasonable costs
The Court will not approve disproportionate or unreasonable costs
Which CPR section provides that summarily assessment costs are payable within 14 days unless there is an order to the contrary?
CPR 44.7
What does Williams & Gergiou v Wayne Hardy Builders 2014 determine?
Failure to file N260 24 hours before the hearing = No costs allowed
McDonald v Taree Holdings 2000?
Failure to file an N260 24 hours before the hearing SHOULD NOT deprive a party to his costs entirely.
Tribe v Elborne Mitchell LLP (Costs) 2021?
A Defendant did not suffer any prejudice from the Claimant failing to produce it’s statement of costs before a directions hearing and so the statement could be taken into account
Where costs allowed, when the N260 wasn’t filed, 24 hours before the hearing in Williams & Gergiou v Wayne Hardy Builders 2014
No
Which case provides that the failure to file an N260, 24 hours before a hearing, should not deprive a party to their costs?
McDonald v Taree Holdings 2000
Which case provided that if the Defendant did not suffer any prejudice by the Applicant not filing their N260, 24 hours, before a directions hearing, then it could be taken into account?
Tribe v Elborne Mitchell LLP (Costs) 2021?
