Interim Applications & Injunctions Flashcards
What is real prospect of success?
Define with reference to case law
Swain v Hillman - realistic as opposed to fanciful prospect of success, not a mini trial
International Finance Group - ‘real’ means better than merely arguable
Interim Prohibitory Injunction
- What case is relevant?
- What are the considerations followed?
American Cyanamid (the case no one can pronounce but is still poisonous to me so I need an interim injunction prohibiting it from coming near me)
- Is there a serious question to be tried?
- Would damages be an adequate remedy?
- Where does the balance of convenience lie?
- What merits are there to the case?
NB defences: delay, acquiescence, clean hands, hardship, equity does not act in vain, or the court cannot enforce the order in question.
Freezing Injunctions
- What case is relevant?
- What specific requirements apply?
Mareva v International Bulkcarries
- There must be a substantive cause of action justiciable in England & Wales
- The applicant must have a ‘good arguable cause’
- The respondent must have assets within the jurisdiction
- There must be a real risk that the respondent may remove from the jurisdiction, dispose of, dissipate or hide its assets in any way that will hinder the enforcement of any judgment that the Claimant may obtain.
Security for costs
- what are cases for where there is reaon to believe that C will be unable to pay D’s costs if ordered to do so?
Unisoft Group
Jirehouse Capital v Beller
Unisoft Group
D must show that C would not (rather than MAY not) be able to pay its debts when the order is made; question to be answered at the time of the application although the court can take into account what will be expected in the future before any order would in fact be made
Jirehouse Capital v Beller
COA interpreted Unisoft, does not mean that D has to show on a balance of probabilities that the C is unable to pay,, the D may well be able to show that there is ‘reason to believe’
Security of costs
- the grant of SoC is an exercise of discretion
- cases?
Olatawura v Abiloya
Parkinson v Triplan
Olatawura v Abiloya
the court must balance the possible injustice of a security for costs order preventing the D from successfully defending its claim against the possible injustice to the claimant
Parkinson v Triplan
main factors court should consider identified by Lord Denning (someone call 999), including whether C’s claim is bona fide and not a sham, whether the application is being used oppressively to stifle a genuine claim, delay in making the application and whether the claimant’s want of means was brought about the D’s conduct
What are injunctions
NOT a cause of action
They are a remedy, ancillary to a substantive cause of action which the court MAY (not does not have to) give
Advantages of applying for an injunction
Name five and why
A prohibitory injunction will maintain your client’s position pending final resolution
of the parties’ dispute at trial.
Freezing injunction
A freezing injunction will ensure there is a ‘pot’ of assets to enforce against if the
claimant is successful at trial. It can also be granted by the court in respect of
overseas proceedings in special circumstances.
Contempt of court
Breaching the terms of an injunction may result in the respondent facing
contempt of court proceedings. This is punishable by a fine and/or imprisonment.
Psychological impact on the respondent
Injunctions impose serious restrictions and inconvenience on the respondent.
Freezing injunctions also affect the creditworthiness of the respondent.
Settlement
Given the points referred to above, the respondent to an injunction is often willing
to settle after being subject to an injunction which avoids the need to go to trial.
Disadvantages of apply for an injunction
Name five and why
Expensive and time-consuming
Injunctions are the sort of applications where the client might have only walked
through your office door just a few hours before you actually make the
application, so the potential for getting it wrong is worryingly high. It is not
unusual for several solicitors to work on the application to minimise this risk.
Because injunctions are usually made urgently and often considered draconian in
their effect, the court will not grant an injunction lightly and will want to see a lot of
evidence at the hearings.
Injunctions are therefore expensive applications to make. If you are acting for a
claimant, you will also have to prepare your claim form and particulars of claim
either for the hearing or very soon afterwards. This means that the costs of the
litigation are very ‘front-loaded’ (which is already a problem under the CPR).
Duty of full and frank disclosure
Where an urgent injunction is sought without notice to the respondent, the court
places even more trust in the applicant to tell the full story. The applicant must
therefore be extremely careful to avoid misleading the court whether by action or
omission, and to disclose all the relevant facts regardless of whether these are
harmful to the application. This may result in raising issues that are helpful to a
respondent which that respondent had not even considered.
Undertakings - damages
As the risk of injustice to the respondent is high, the court is very strict about the
terms on which injunctions are granted. The applicant is required to promise to
compensate the respondent for any loss caused by an injunction that was
wrongly granted. The applicant will usually have to provide evidence that it can
comply with this undertaking financially if it is enforced and may be required to
provide security for the undertaking. Some clients do not like to share details of
their assets.
Undertakings - costs
In order to obtain a freezing injunction, the applicant is also usually required to
compensate third parties affected by the terms of the injunctions, such as banks,
for any costs they incur in complying with the freezing injunction.
Delay
As an equitable remedy, any delay in making an application is likely to reduce the
likelihood of obtaining an injunction.
Parkinson v Triplan factors
‘all the circumstances of the case’
a) whether X has a bona fide claim (e.g. X seeking payment of an invoice, which is a bona fide claim)
b) whether Y has been delayed in making an application (e.g. when would Y have had access to documents?)
c) where X’s lack of money has been brought about by Y’s conduct. (what do the facts say, is it a direct result, have they also had an impact on reputation and thus causing more financial difficulty?)
d) whether Y is using the application as a means of stifling X’s claim. Is it genuine?
