Although parties regularly seek injunctive relief from courts as part of their claim, it is often important to consider whether it is appropriate to apply for interim injunctive relief, either prior to the commencement of court proceedings or during the proceedings, but before the court has made a determination at trial.
Clients may be advised to apply for injunctions or injunctive relief in circumstances where
- A party has invaded or threatened to invade their opponent’s legal or equitable rights; or
- Where a party has behaved, or threatens to behave in an unconscionable manner.
There are two main types of interim injunctions:
(i) a prohibitory injunction –where the court orders a party not to do a wrongful act; and
(ii) a mandatory injunction –where the court orders a party to undo the consequences of a wrongful act (for example, an order requiring a person to knock down an unlawfully built house) or not to continue some wrongful omission.
In this page we discuss the different types of interim injunctions, the grounds for applying for an interim injunction and briefly outline the process for applying for an interim injunction
Why would someone need this service?
Given the wide powers of the court, it is impossible to make a definitive list of all of the types of interim injunctions a court can award. However, a person or business who is faced with or is considering one of the following injunctions, will benefit from obtaining legal advice from us:
- Freezing injunctions – This is an order which restricts or restrains a party from disposing of, or dealing with their assets;
- Orders directing a party to provide information about the location of property or assets, whether ancillary to a freezing injunction, or as a standalone order;
- Search orders – This is where a court permits a search of a party’s property for the purpose of preserving evidence and property;
- Norwich Pharmacal Orders – orders requiring third parties mixed up in wrongdoing to provide information or documentation
- Orders requiring the delivery up of property;
- Injunctions to protect the right to light;
- Orders to restrain nuisance or trespass;
- Orders to prevent works to a Property.
What are the grounds for obtaining an interim injunction?
When considering whether or not to make an interim injunction, the court will consider whether it is “just and convenient” to do so, pursuant to section 37 of the Senior Courts Act 1981. The court will also consider what type of interim injunction a party is seeking and refer to the relevant case law. Nevertheless, the leading case of American Cyanamid Co (No 1) v Ethicon Ltd  UKHL 1 provides some basic principles a court will consider when considering whether or not to grant an interim injunction, as set out below:
- Interim injunctions will only be granted where there is an underlying cause of action;
- The court can consider the merits of the case based on the evidence available at the time of the application;
- Such injunctions will only be granted if there is a serious question to be tried, i.e. is there a real prospect of succeeding (or defending) the claim or issue;
- The court will assess whether damages will be an adequate remedy for the applicant if they succeed at trial? If so, then interim injunctive relief will not normally be granted.
How does the process work?
In order to apply for interim injunctive relief, a party will follow the usual procedures for applying for interim applications, namely completing an application form and submitting the evidence in support of the application, which is usually done by way of a witness statement and exhibits. However, please note that each court has its own forms and guidance on how each type of interim injunctive relief application should be presented and conducted.
Before applying for an interim injunction, a party will need to consider whether such application should be made upon notifying their opponent or made “without notice”. Often disputes can be resolved without the need for court intervention and a party may promise to do (or not do) something by way of providing undertakings. Accordingly there can be benefit in notifying a party of the intention to apply for interim injunctive relief.
However, if notifying a party of the intention to apply for an interim injunction risks that party furthering the wrongdoing (for example risks the party dissipating assets) then it may be wise to apply for an interim injunction, without notice or upon very short notice.
Crucially, a party applying for an interim injunction must be prepared to provide a cross-undertaking. This is where the applicant undertakes to pay the respondent compensation if it is later held that the interim injunction was wrongly granted.
What are the likely costs?
Once we are informed of the outline of the dispute, we will provide you with an estimate of costs at the outset based on the type of work required.
What should people do before calling?
It would be helpful if as much relevant documentation as possible could be to hand prior to contacting us. If you are faced with defending an interim injunction, it would be helpful to let us have a copy of the application you have been served with.