What is an injunction?
An injunction is best summarised as an order from the court which either prohibits a person from taking a particular action or requiring them to take a particular action. The former is called a “prohibitory injunction” and the latter is a “mandatory injunction”.
Why seek an injunction?
Injunctions are usually necessary in matters that are time sensitive and where urgent action needs to be taken. Acting with speed is a critical part of obtaining an injunction. The most obvious example is where an asset such as money or a specific item must be preserved so that it is not lost. Another example is where personal privacy is at risk and only an injunction will grant the applicant the required protection in law.
What is required to pursue an injunction?
An injunction cannot be applied for and obtained with ease, especially as the nature of the relief (constraining a party from doing something or forcing it to carry out an act) is draconian.
When considering whether it is appropriate to make an injunction application, thought must be given as to the following:
- Is there a substantive cause of action?
- Is an injunction the only adequate remedy instead of the usual damages?
- Would it be just and convenient for a court to grant an injunction in all the circumstances?
What is the process of obtaining an injuction?
An injunction can be applied for prior to or after legal proceedings have been issued whilst they are ongoing.
Injunction applications are often made “without notice” where appropriate, so as to not tip off the other side beforehand and prevent action that could cause significant problems. In certain circumstances an injunction can be applied for where the other side is “on notice” that the application may be coming, commonly in copyright disputes where pre-action correspondence will usually have taken place before the making of an injunction application.
Using the example of a prohibitory injunction, the first step is to obtain an injunction on an interim basis, what is known as an “interim” or “interlocutory” injunction.
An initial hearing will take place and if granted, the injunction is temporary and usually lasts until a return hearing-often 7-14 days after the interim injunction has been ordered. At the return hearing the judge will decide whether the interim injunction should remain in place for the duration of the dispute.
An application notice, draft order, witness statement(s) and supporting evidence are the essentials with respect to the required documentation required for an injunction application.
An important point to mention is that the applicant must give a cross undertaking as to the respondent’s legal costs, in the event that it is later determined that the injunction should not have been granted.
This opens up the applicant to a potentially significant costs risk and is why legal advice should be taken before an injunction application to the court is made.
I have been served with an interim injunction – how do I respond?
As mentioned above, acting with speed is crucial. Burying your head in the sand is simply not an option. The terms of an injunction are invariably very serious and breaching any terms of the same will lead to severe consequences, potentially a large fine or even imprisonment.
The most important step to take is to instruct solicitors to review papers, advise you as to preparation for the return hearing and to assist in the appropriate gathering of evidence that will hopefully convince the judge that the interim injunction should not continue beyond the return hearing.
Speak to an expert
At Hanne & Co, we deliver practical and cost-effective advice to businesses and individuals. We are proud of our ability to provide quality advice tailored to each client’s individual objectives and boast a high rate of success in achieving results for our clients. Should you have any queries about any of the above, please do get in touch on +44 (0) 207 228 0017 or via the form below and we will be happy to assist.
