Interim injunctions Flashcards
What is an injunction?
An injunction is an order of the court requiring a party to do or to refrain from doing a given act. Breach of an injunction is potentially punishable as contempt of court, so breach can result in a fine and/or imprisonment.
What is an interim injunction?
An interim injunction is a temporary measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision on the merits of either party’s case to restrain the respondent from causing irreparable or immeasurable damage to the applicant by continuing conduct or ceasing conduct that has led to the dispute. It is usually made in circumstances of urgency and lasts until trial or further order.
What is a perpetual injunction?
A perpetual injunction is a final injunction (usually made at trial) that continues with no limitation of time.
When will the court grant in interim injunction?
When it is `just and convenient’
What test will the court use to decide whether granting an injunction is `just and convenient’?
The American Cyanamid guidelines
What are the steps under the American Cyanamid guidelines?
Step 1. Is there a serious question to be tried?
Step 2. Would damages be an adequate remedy for a party injured by the courts grant of, or failure to grant, an injunction?
Step 3. Where does the balance of convenience lie?
What does it mean `is there a serious case to be tried’?
An injunction is not a cause of action - it is a remedy. The applicant must have a pre-existing cause of action.
The court must be satisfied that this is not “frivolous or vexatious” and that “there is a serious question to be tried”. In many cases, this is not a difficult hurdle to overcome.
Explain step 2 of the Cyanamid guidelines
When considering the adequacy of damages, the court will firstly consider the issue from the applicant’s perspective and, depending on the outcome of this analysis, the court might then go on to consider the same issue from the respondent’s perspective:
Step 2(a) – applicant’s perspective - the court will generally refuse an injunction if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant an interim injunction. However, damages may be inadequate if the respondent has not means of paying them or the harm being caused is irreparable, cannot be quantified, or is serious and likely to continue.
Step 2(b) – respondent’s perspective – if an injunction is granted, the respondent is going to be prevented from doing something, or required to do something, until trial – but it might transpire that the injunction should never have been granted, most likely if the applicant fails at trial. The court will ask itself whether the respondent could be adequately compensated by the applicant if it transpires that the injunction was wrongly granted. If so, then this suggests the injunction should be granted.
Explain step 3 of the Cyanamid test
If it appears that damages would be adequate for neither party, then the court will consider a very broad range of factors to try to ascertain whether granting or not granting the injunction carries the lesser risk of injustice i.e. to ascertain where the ‘balance of convenience’ lies.
What does it mean that interim injunctions are equitable and discretionary?
The guidelines just stated should be considered in the context of an injunction being an equitable remedy, so equitable principles apply, including that;
a. An injunction will not be obtained when it would serve no practical purpose;
b. The court might refuse to grant an injunction if the applicant has not come to court with ‘clean hands’
c. Excessive delay may lead to a refusal of the application.
An injunction is also a discretionary remedy: there is no automatic right to an injunction just because all the guidelines above have been met.
What must an application for an interim injunction be supported by?
An application for an interim injunction must be supported by written evidence setting out the facts to justify the relief sought, keeping in mind the guidelines and considerations set out above. In addition, if the application is made without notice, the evidence must state the reason why notice has not been given.
What procedures are in place to prevent the potentially serious consequences of an interim injunction?
Cross undertaking in damages
Without notice safeguards
Applications before a claim is issued
Explain cross undertakings in damages
A court will often decide to grant an interim injunction only if the applicant offers an cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction.
The cross-undertaking is made to the court. It is there for the protection of the respondent, but the court can also require (as a condition of granting the injunction) an undertaking to be given for the protection of any other person who may suffer loss because of the order.
Explain without notice safeguards
The application for an interim injunction can, like any interim application, be made without notice if this is justified. If the application is made without notice and the injunction is granted, it will be granted initially for a limited period only and the court will fix a second hearing called the ‘return date’.
In the case of a without notice application, the applicant must make full and frank disclosure of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant.
The applicant’s legal
representatives must prepare a full note of the hearing as soon as possible and this should also be served on the respondent (and any other party affected by the order) without delay. The full note of the hearing ensures the respondent knows what case they have to meet at the next, with notice, hearing.
What orders might the court make at a second hearing?
*Maintain order (to keep the injunction in place until the trial of the substantive matter).
*Discharge the injunction vary the terms of the injunction.
*Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted.
*Accept an undertaking by the respondent not to do the acts in question, in place of the injunction.
