Injunctions and Interim Applications

Question 1

What is a prohibitory injunction?

Answer 1

Designed to prevent someone from taking certain steps.

Question 2

What is a mandatory injunction?

Answer 2

Requires a party to take action to do something.

Question 3

What is a preventative injunction?

Answer 3

Requires the other side to take steps to prevent harm occurring.

Question 4

What Part of the CPR deals with injunctions and interim applications?

Answer 4

Part 25

Question 5

What are the consequences for breaching an injunction?

Answer 5

Contempt of court - Contempt proceedings can result in 2 years imprisonment, a fine or seizure of assets.

Question 6

What is an interim injuction?

Answer 6

A temporary version of the type of injunction the applicant would seek at trial.
Granted to preserve the position between the position of the parties, where there is a risk of substantial harm caused by the defendant’s actions between issuing proceedings and the trial.

Question 7

What are the American Cyanamid Principles, which apply to the granting of interim prohibitory injunctions?

Answer 7

Court will consider:
1. Whether there is a serious question to be tried;
2. The balance of convenience of each party should the order be granted (is it more convenient to grant than deny?)
3. Whether there are special factors that ought to be taken into account;
4. Whether an award of damages would be adequate, and if the defendant is in a financial position to pay them.

Question 8

What is the procedure for applying for an interim injunction?

Answer 8

Form N244 used.
Can be made without notice - order served on defendant with a return hearing scheduled shortly thereafter to allow order to be set aside or varied.
Evidence required, in a statement of truth, or an affidavit for search orders and freezing injunctions.

Question 9

On what grounds can an interim injunction be discharged?

Answer 9

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

Question 10

What is a freezing injunction?

Answer 10

A type of prohibitory injunction which prevents the defendant from removing or hiding assets in order to resist judgment.
Can also require a party to provide information about the location of the asset, so that they can be effectively seized.

Question 11

What are the requirements for a freezing injunction to be made?

Answer 11

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

Question 12

What documents are submitted in an application for a freezing injunction?

Answer 12

• The application notice (N244).
• Any statements of case;
• Copies of relevant affidavits and exhibits;
• Any previous orders in the case;
• A skeleton argument or summary; and
• A chronology (if it would assist).

Question 13

What is a search order?

Answer 13

A type of interim mandatory and prohibitory order, which requires the defendant to permit the claimant to search for and (if necessary), seize evidence or property.

Question 14

What type of evidence/property can be subject to a search order?

Answer 14

Evidence which may be relevant to existing or proposed proceedings.
Property which is may or may be the subject of proceedings, or to which any question arises or may arise in proceedings.

Question 15

What are the requirements for a search order to be granted?

Answer 15

1. There must be an extremely strong prima facie case on the merits;
2. The defendant’s activities must cause (potential or actual) harm to the claimant’s interest.
3. There must be clear evidence, that the evidence/property is in the defendant’s possession, and there is a real possibility it may be destroyed before any on notice application can be made.

Discretionary - court can still deny application.

Question 16

What is the general procedure for any interim application on notice?

Answer 16

1. Applicant files Form N244 Application Notice with the fee (EX50), evidence (witness statement/affidavit), and a draft of the order.
2. Court will decide if a hearing is needed and fix a date.
3. Notice of hearing date issued by court, with sealed copies of all documents.
4. Sealed copies of the application notice (and documents), and Notice of Hearing Date served on the respondent at least three days before the hearing (excluding day of service, weekend and holidays).
5. Respondent can file evidence in response.
6. Determination at hearing or on paper.
7. Determination of costs - Summary assessment (usually).

Question 17

How does the procedure differ for interim applications made without notice?

Answer 17

1. Evidence in support must include reasons why notice was not given.
2. The application notice and evidence is not required to be served on respondent before trial.
3. Where a hearing is held, only the applicant will attend and make submissions.
4. After the hearing, the application notice, evidence, and order served on respondent.
5. Respondent may apply to set aside or vary the order made within 7 days of it being made.

Question 18

In what circumstances can an interim application be given without notice?

Answer 18

1. Where there is exceptional urgency (notice would defeat the point of the application, or create injustice through delay or the actions a defendant could take).
2. Where there is insufficient time before a fixed hearing to give notice, and the applicant intends to make an oral application at the hearing.
3. With consent of the parties/the court.
4. Where permitted by a rule, Practice Direction or court order.
5. Where the overriding objective would be best furthered by doing so.

Question 19

When can an interim remedy be obtained?

Answer 19

Can be obtained at any time before proceedings are issued, until after judgment is given.
Can only be obtained pre-issue of a claim, where it is urgent or otherwise desirable to to do so in the interests of justice.

Question 20

What is an interim payment?

Answer 20

An advanced payment in respect of damages which are likely to be awarded at trial.

Question 21

What part of the CPR deals with interim payments?

Answer 21

Part 25.

Question 22

In what circumstances are advanced payments made?

Answer 22

• PI claims, to assist in treatment/recovery, or to avoid hardship caused by court delay.
• Commercial claims, to help a client who may may be experiencing cash-flow problems, whilst awaiting judgment for a large debt.

Question 23

What are the grounds to which an interim payment can be made?

Answer 23

1. Where the defendant has admitted liability;
2. Where the claimant has obtained judgment but the sum to be paid has not yet been assessed.
3. Where the court is satisfied that if the if the action went to trial the claimant would obtain judgment for a substantial sum.

Question 24

What is an injunction?

Answer 24

A type of discretionary remedy, that are within the powers of the court.
Discretionary - even if grounds are met, can still be refused.

Question 25

What should the client consider before making an application for an interim injunction?

Answer 25

• Cost - requires a team of lawyers working for days at short notice.
• Undertaking to proceed forthwith must be given - Must be prepared.
• Undertaking in damages may be required with immediate payment - Client will be required to compensate defendant for loss suffered and costs, if order is later set aside.
• Disclosure - Full and frank disclosure required in without notice application.