SGS 9 (Injunctions)

Question 1

What are:

Interim injunctions

Prohibitory injunctions?

Answer 1

Temporary injunction granted at an interim stage, usually lasting until trial.

A court order prohibiting a person from doing something.

Question 2

Structure for IPI Q?

Answer 2

Cause of action

Serious Q to be tried

Damages adequate

Balance of Convenience
- weighs likely detriment to respondent vs benefit to applicant of injunction.

Question 3

(IPI) Cause of action?

Answer 3

Must be an existing one but in urgent cases can apply for an injunction before issuing CF.

Question 4

(IPI) After cause of action?

Answer 4

Equitable discretionary remedy so apply American Cyanamid Guidelines.

Question 5

(IPI) Serious Q to be tried?

Answer 5

not frivolous or vexatious

e.g. there is a clear breach . unsure or unaware of any defence

Question 6

(IPI) Balance of convenience?

Answer 6

If evenly matched court preserves status quo ante (situation which existed BEFORE THE CONDUCT COMPLAINED OF).

Merits of case only considered as a last resort (no mini trial)

Question 7

Steps for a without notice hearing?

Answer 7

Documentation

Without notice hearing

Serve documents on respondent

On notice hearing

Order either maintained, discharged or damages granted to respondent.

Question 8

Without notice hearing documentation and then documentation to serve on Respondent?

Answer 8

Application notice, evidence in support, draft order, statement of costs, Claim form (if made before, draft CF filed at court and claim issued immediately after hearing)

As above + order, copy of guarantee supporting undertaking in damages, claim form, notice of without notice hearing

Question 9

MAREVA guidelines?

Answer 9

(FI’s)

Substantive cause of action in E and W?

Application have good arguable case (Niemia Maritime Corp v Trave)

R has assets within jurisdiction? (equity won’t act in vain).

Real risk he will dispose or remove of assets?

NB discretionary

Question 10

(FI) Good arguable case?

Who is FI served on?

Answer 10

Niemia Maritime Corp v Trave: not necessarily 50%+ but more than barely capable of a serious argument.

Generally defendant but can be a third party.

Question 11

(FI) real risk that D will dispose of or remove assets?

Answer 11

Circumstantial evidence:
D dishonest 
debt defaults 
started to remove assets 
location of assets 
R based in tax haven?

Question 12

(FI) full and fair disclosure?

Answer 12

all evidence including that which suggests no real risk BUT advice from barrister covered by litigation privilege so need not be referred to.

Question 13

Disadvantages of FI and IPI?

Answer 13

full and frank disclosure - may be forced to raise issues R had not even considered.

Undertaking for damages - may have to provide security for undertakings and may not wish to share details of assets.

Question 14

What is security for costs?

Answer 14

application made by a party on receiving end of claim, usually the defendant, if it has reason to believe that party bringing the claim, does not have sufficient funds to meet the COSTS of the action should the claim be SUCCESSFULLY DEFENDED.

Question 15

If successful, what may the claimant be required to make?

Answer 15

Court determines amount and manner in which given e.g:

Payment into court (most usual)

Payment to applicant’s solicitor

Bank guarantee

Undertaking to pay applicant’s costs in proceedings.

Question 16

When can an SFC be made?

Answer 16

Usually around CMC, case must have started.

Question 17

(SFC) second limb of test?

Answer 17

CPR 1

OLATAWURA: balance deprivation of R of access to court (if unable to raise amount) against injustice to A (if no security provided)

Sir LP v Triplan:
Bona fide claim (i.e. claimant’s claim)?
Oppressively used to stifle claim?
Delay?
C’s impecuniosity a result of D’s conduct?

Question 18

(SFC) first limb?

Answer 18

Just having regard to all circumstances of case.

ONE OF THE GROUNDS UNDER s.25.13(2) applies e.g.
Check Companies House Accounts

‘reason to believe’ - claimant company may not be able to pay even if they can adduce substantial evidence to the contrary (Re Unisoft Group test interpreted in Jirehouse Capital v Beller)

Question 19

What are the advantages of injunctions?

Answer 19

Breach results in contempt of court

psychological impact on R

often leads to R considering settlement.

Question 20

Documents for a FI Application?

Answer 20

Application notice (if urgent, draft prepared and notice issued after hearing)

Affidavit evidence (full and fair disclosure of all material facts) OR if urgent draft / oral evidence.

Draft order

Statement of costs.