What is an injunction?

An injunction is an order of the court that requires a party either:

  • To do a specified act – these are known as mandatory injunctions; or
  • To refrain from doing a specified act – these are known as prohibitory injunctions.

Common types of injunctions that can be ordered by the Court include:

  • Freezing injunctions which restrict defendants from dealing with assets such as money or property;
  • Orders directing a party to provide information about the location of property or assets;
  • Search orders which permit the search of a defendant’s property for the purpose of preserving evidence and property;
  • Orders requiring the delivery up of property;
  • Injunctions to protect interests related to real property, for example, rights of light;
  • Injunctions to restrain trespass or nuisance;
  • Springboard injunctions to restrain unlawful competition by directors and employees;
  • Proprietary injunctions which protect property and trust assets;
  • Privacy and confidentiality injunctions which protect an applicant’s personal privacy or confidentiality in business or personal information;
  • Injunctions protecting patentee or IP right-holder rights; and
  • Injunctions to prevent the advertisement of a winding-up petition.

This is not an exhaustive list as the court has a wide remit in terms of the types of injunctions it can grant. 

How to get an injunction

Injunction applications, by their very nature, have to be dealt with very swiftly and require specialist knowledge of injunction law and court procedures. 

The court procedure is set out in the Civil Procedure Rules (CPR) which are the rules which govern the conduct of all litigation in England and Wales.  Normally, the initial documents which need to be filed with the Court to commence injunction proceedings are:

  • A Claim Form and Particulars of Claim which will set out the basis of the underlying claim;
  • An Application Notice and draft Order setting out the injunctive relief applied for; and
  • A witness statement or affidavit which will contain the evidence in support for the injunction application.

The Court, when determining whether to grant interim relief such as an injunction, will consider whether it is “just and convenient” for an injunction to be granted.  Generally speaking what this means is:

  • Injunctions should, generally, only be granted where this is an underlying cause of action;
  • Relief is sought before the court has adjudicated on the parties’ substantive rights;
  • The Court will not conduct mini-trials of conflicting evidence;
  • The Court will attempt to maintain a fair balance between the rights of the parties pending trial;
  • Injunctions are discretionary and all the facts of the case must be considered; and
  • There are no fixed rules as to when an interim injunction will be granted and the remedy must be kept flexible.

In addition, the House of Lords case of American Cyanamid Co (No 1) v Ethicon Ltd established an important test which is routinely applied by the Courts.  The starting point is whether there is a serious question to be tried (i.e. is there an issue for which there is some supporting material and an outcome which is uncertain).  If so, the Court must then go on to consider the “balance of convenience”. 

The balance of convenience test is considered in three stages:

  1. Will damages be an adequate remedy for the claimant if they succeed at trial? If so, injunctive relief is not normally granted.
  2. If damages would not be an adequate remedy for the claimant, will the claimant’s cross-undertaking in damages provide adequate protection for the defendant if it is discovered at the final trial that the Court had wrongly granted interim relief? If not, that points against the grant of injunctive relief.
  3. If there is doubt as to the adequacy of damages when applying the above tests, the Court will consider the balance of convenience more generally and the particular factual circumstances. Where such factors remain evenly balanced, the Court will tend to favour preserving the status quo. 

We mention above a cross-undertaking in damages.  So what is this?  Typically, a claimant who is seeking injunctive relief must undertake to pay to the defendant whatever the Court may later order by way of compensation if it is later held that the interim injunction was wrongly granted.  This undertaking is known as a cross-undertaking in damages.  If it is a company seeking an injunction, the Court is likely to want to see up to date management accounts to show the company’s current financial position.  If it is an individual seeking an injunction, the Court may require the individual to pay a sum of money into Court. 

An important decision when considering whether to apply for injunctive relief is whether to send correspondence to the proposed defendant before the injunction application is made.  Correspondence may elicit admissions, concessions or even a resolution of the dispute.  Conversely, entering into correspondence will put the intended defendant on notice of possible proceedings and of the possibility of an application for injunctive relief which can lead to delay and avoidance tactics.  It is common for defendants who are seeking to resist the imposition of injunctive relief to contend:

  • If there has been no or minimal correspondence prior to the injunction application being made, that the application for injunctive relief is inappropriate or premature; or
  • If there has been lengthy correspondence prior to the application for injunctive relief being made, that the applicant has unduly delayed in bringing the application.

The Court will look at the situation realistically.  The extent to which it is appropriate to engage in pre-action correspondence prior to applying for injunctive relief will depend on the nature of the case.  Notwithstanding this, the Courts have consistently warned against trigger-happy without notice applications.  Without notice applications are only likely to be granted in very limited circumstances such as:

  • Where giving notice would enable the defendant to take steps to defeat the purpose of the injunction, such as in the case of many search or freezing orders; and/or
  • Where there is some exceptional urgency, which means there is literally no time to give notice.

How much does it cost to take out an injunction?

The cost of applying for an obtaining an injunction will depend on the type of injunction being sought and how the defendant responds to the injunction application or the threat of an injunction application being made. 

If it is possible to resolve the issue(s) through pre-action correspondence without a Court application being made, the costs will be lower than if an urgent injunction application that requires lots of evidence has to be made. 

Costs can escalate very quickly if Court proceedings are issued, particularly as it is normal for a barrister to be instructed in relation to any Court application.  It is not uncommon for it to cost tens of thousands of pounds to draft, issue and serve injunction proceedings and attend the first Court hearing. 

Sometimes though injunctive proceedings are the only way in which a claimant can protect its position, minimise the potential damage caused and bring the dispute to a timely and satisfactory conclusion. 

How to get an injunction served

It is always our advice to clients that, where possible, notice of injunction proceedings and/or a Court order granting the claimant injunctive relief, are served personally on the defendant.  This requires instructing a process server to hand deliver the relevant paperwork to the defendant.  This is so it is brought to the defendant’s intention that injunction proceedings have been issued against them and/or that a Court has ordered them to do something or refrain from doing something. 

How long does it take to get an injunction?

By their very nature, injunction applications need to be made quickly.  One of the factors the Court can take into account when deciding whether to grant injunctive relief is whether a claimant has unduly delayed in making the injunction application. 

The Courts in England and Wales set time aside to specifically deal with urgent injunction applications.  It is not uncommon for us to receive instructions on a new injunction application and for it to be heard by the Court for the first time within a week. 

Where an “on notice” injunction application is made i.e. the defendant is aware of the application, the Court rules say that the application should be served at least three clear days before the hearing to give the defendant time to respond to the application and prepare for the first hearing.  This timescale can be shortened though with the permission of the Court and, as mentioned above, some types of injunction applications are made without the defendant being aware of them. 

Where an injunction application is made without the defendant’s knowledge, the first hearing (which only the claimant and its legal representatives will attend) is likely to take place within a week or so of the application being issued by the Court.  If at that first hearing the Court grants injunctive relief, the Court’s order is served on the defendant, and there will then be a second hearing, known as a return hearing, which normally takes place a week later.

Our dispute resolution team has a significant amount of experience in dealing with all types of injunctions.  We commonly advise clients  in the following areas: enforceability of restrictive covenants, freezing orders, misuse of confidential information, search orders, intellectual property injunctions and injunctions to prevent the advertisement of winding-up petitions.  The team is ranked as top tier in the Legal 500 and we are described as “dynamic, positive, forward-thinking, effective, tenacious, very client friendly and who give sound and sensible legal advice”.  Please do not hesitate to contact a member of the team today if you need assistance with potential injunctive proceedings.