15 Interim Injunctions

Question 1

APPLICATIONS BEFORE PROCEEDINGS

When MAY the court grant an interim injunction?

Answer 1

before a claim form = issued where:

1. No rule or PD prohibits order
2. Matter is urgent or desirable in interests of justice
3. Where applicant is intended D, D must obtain court’s permission. D MUST file acknowledgement of service or defence before applying for permission.

Question 2

What does URGENCY mean?

Answer 2

MUST be “good reason” for departing from gen rule of “3 clear days’”. Even without notice app – A must give other side some notice, e.g. telephone unless secrecy = essential. D who is notified this way, MAY attend hearing notice as “opposed hearing without notice”. Last resort – Court makes order without draft

Question 3

What format is required for an interim injunction?

Answer 3

1. Title of proposed claim;
2. Full name of A;
3. (As A not party yet), A’s address
4. Specification for hearing/without hearing.

Question 4

What must an interim injunction include?

Answer 4

Application notice MUST:

1. State order sought; and
2. Give date, time + place for hearing.

Question 5

What happens if there is real urgency?

Answer 5

– court MAY dispense with application notice. If so, only for initial hearing, and court will norm require: undertaking for A to file application notice + pay fee on same or next working day. Application for Interim Remedy (IR) MUST be supported by evidence, unless court orders otherwise. App should be made in court where substantive proceedings likely UNLESS: “good reason to make app to different court”. Pre-action interim injunctions = norm dealt @ hearing without full notice. Norm heard before other matters listed. If sufficiently urgent = court MAY interrupt + hear it. Extreme urgency = MAY be dealt with by phone – but available only to solicitor or counsel.

Question 6

What if pre-action order is granted?

Answer 6

court MAY give direction requiring claim be commenced. Order MUST contain:

1. Statement of right to apply to set aside/vary order within 7 days after served.

Question 7

WHat happened if applications for II during proceedings?

How to do it?

Answer 7

issue app notice by written evidence. Norm provide electronic draft + skeleton. Service effected ASAP, or not less 3 clear days before hearing. R should disclose evidence at least 3 clear days to avoid adjournment.

Question 8

What evidence is required to support the interim injunction?

Answer 8

MUST be supported evidence covering:

1. Substantive issues;
2. If app without notice, explain why notice not been given.
3. Set out facts which A relies

Unless court/Act requires affidavit, evidence to be:

1. By witness statement
2. Set out in app, provided verified by SoT;
3. Set out in statement of case, provided verified by SoT

Question 10

When should service of the interim injunction be granted?

Answer 10

Draft order should be attached. Written evid in support. Service MUST be effected ASAP + at least 3 clear days before hearing unless:

1. Secrecy (freezing injunction);
2. Urgency
3. OO furthered
4. Consent
5. Permission of court
6. Court order, rule or PD permits.

Usually need skeleton argument.

Question 11

For an interim injunction, what is needed 24 hours before the hearing?

Answer 11

Statement of costs

Question 12

For interim injunctions.

where it is a without notice application what must be done?

Answer 12

A has duty of full + frank disclosure. App can be made by telephone. Unless app secret, A has duty to give informal advance notice to R. A MAY have to give additional undertakings.

Question 13

What happens at a hearing of interim injunction applications?

Will they be public/rpivate?

Answer 13

Norm in public, exceptionally will be in private where:

1. Hearing involves confidential information; or
2. Interests of children or protected parties.

PRINCIPLES – II is equitable relief, so @ court’s discretion. HC MAY grant injunction or appoint receiver where just + convenient. Injunctions are REMEDIES, so MUST have substantive cause of action.

Question 14

What are the American Cyanamid guidlines?

Answer 14

(prohibitory injunction) – how court’s discretion should be exercised. Apply OO + grant injunction if “just + convenient”.

1. Serious question to be tried
2. Adequacy of damages to the applicant
3. Applicant’s undertaking in damages being adequate protection
4. Balance of convenience
5. Status quo
6. Special factors
7. Merits of the claim

7 steps a judge could go through to grant prohibitory injunction.

Question 15

What is a “serious question to be tried”?

Answer 15

MUST be satisfied cause of action has “substance and reality”.

Question 16

In American Cyanmid, what is the adequacy of damages to applicant?

Answer 16

damages inadequate if:

1. D unlikely to pay this;
2. Wrong is irreparable;
3. Damage is non-pecuniary;
4. No available market
5. Damages would be difficult to assess (loss of goodwill/reputation);
6. Liquidated damages provided by term of contract = lower than provable actual loss suffered through breach of contract.

Question 17

In American Cyamid, what does

“Applicant’s undertaking in damages being adequate protection” mean?

Answer 17

Undertaking in damages are norm always required. Normal undertaking = give protection to D. Extended undertaking = protect TPs – safeguards D or other person who might unjustifiably be prevented from doing something. Fact D is adequately protected

Question 18

What is the “balance of convenience”?

Answer 18

Whether granting/refusing injunction would cause prejudice, taking account of:

1. Prejudice to C suffering if no injunction granted;
2. Likelihood of such prejudice actually occurring;
3. Extent he may be compensated by damages or undertaking
4. Likelihood of either party being able to satisfy an award; and
5. Likelihood injunction will turn out to have been wrongly granted or withheld

e.g. if the injunction will cause irremediable prejudice.

Question 19

What is the “status quo”?

Answer 19

relevant status quo: period immediately before CF is issued; or if unreasonable delay in applying after CF issued, period immediately before interim app issued. Minimal periods = ignored.

Question 20

What is “Merits of claim” in American Cyanamid?

Answer 20

as last resort – court MAY take into account the relative strength of each case. II = discretionary + all facts must be considered. Should seldom resolve complex issues of fact or law.

Question 21

What are the American Cyanamid exceptions?

Answer 21

1. Final disposal of claim
2. Mandatory injunctions
3. Defamation claims

Question 22

What is the “financial disposal”?

Answer 22

Where no realistic chance of the case ever going to trial = court MUST consider underlying merits = HIGHER TEST.

The test: “Overwhelming on the merits”.

a “high degree of assurance” test

With this exception, C MUST establish stronger case than “serious question”, it is “overwhelming on the merits”. Two tests because tis equitable. If applicant state: high degree of assurance, if defendant state: overwhelming case on the merits.

Question 23

What are mandatory injunctions?

Answer 23

American Cyanamid applies to Mandatory Injunctions -) higher standard. TEST: high degree of assurance. Overriding consideration = if granting/refusing injunction likely to involve:

1. The least risk of injustice
2. Even if court doesn’t believe high degree of assurance, MAY be circs where granting interim MI based on balance of risk of injustice okay.

Question 24

What are defamation cases in Interim Injunctions?

Answer 24

II not generally granted in defamation cases if it is substantially true. Conditions:

1. D MUST state in evidence that it intends to set defence that statement is substantially true
2. D proves its his honest opinion. C has BOP to prove falsity of words.

Still use AC guidelines stage 2-6, ignore 1, and 7 is in question.

Question 25

**For defamation claims,** What are the three protections for freedom?

Answer 25

1. must take all practical steps **to inform D** of app to restrain publication; 2. No II will be granted unless “court is satisfied” **(civil SoP),** C is likely to establish publication should not be allowed; 3. Regard must be had to **importance of right to freedom of expression**; and 1. Whether material is available to public; and 2. Whether it is in public interest to be published

Question 26

What are the conditions for defamation interim injunctions?

Answer 26

Conditions: 1. D MUST state in evidence that it intends to set defence that statement is substantially true 2. D proves its his honest opinion. C has BOP to prove falsity of words. Still use AC guidelines stage 2-6, ignore 1, and 7 is in question.

Question 27

When WILL the court refuse an interim injunction to protect free speech?

Answer 27

Where D in defamation claim: 1. States in witness statement it pleads defence of: 1. Substantial truth 2. Honest opinion 3. Public interest 2. Alleged libel not obviously untruthful/malicious Court WILL refuse II to protect free speech.

Question 28

What happens if interim injunctiosn if there is **no defence?**

Answer 28

Where no def with real prospect of success = C may apply for summary injunction including final injunction. Even if C doesn’t apply summary injunction, but applies for II = court norm doesn’t apply AC if no defence + applies normal equitable considerations.

Question 29

What are interim mandatory injunctions?

Answer 29

only granted where “**_high degree of assurance_**” of merits of C’s cause of action. **_The order =_** a **penal notice** MUST be inserted on front page of order warning D that breach may result in imprisonment/other penalties.

Question 30

What are undertakings?

Answer 30

Undertakings given by A are incorporated in form of order. Court order MUST contain undertaking unless ordered otherwise. Undertakings in damages NOT required where Crown/LA seek II to enforce law, unless D shows strong case -) conduct is unlawful.

Question 31

Norm number of undertakings required where II granted without notice: What are they?

Answer 31

1. Undertaking to issue + serve CF 2. Undertaking to file signed evid 3. Undertaking to apply for a hearing on notice

Question 32

What is an **inquiry as to damages?**

Answer 32

if II shouldn’t be granted, D may enforce undertaking in damages by applying for order for an inquiry as to damages. Inquiry sought using Part 23 procedure supported by written evid. Order NOT penal – requires no fault. Excessive delay may result in app for inquiry being dismissed. App for inquiry likely only be refused if D didn’t suffer provable loss.

Question 33

**_DISCHARGE =_** Apps to vary/discharge interim injunctions made by notice to judge. Grounds include:

Answer 33

1. Material non-disclosure if granted without notice 2. PoC inconsistent with written evidence 3. Order has oppressive effects 4. Unreasonable inference with rights of innocent third party 5. Material change in circumstances; 6. If claim stayed other than by agreement, any II will be set aside unless court orders it should continue. 7. If claim = struck out for non-payment, II will lapse 14 days after claim struck out. If within 14 days C applies to reinstate claim, injunction will remain in force until hearing of that app.

Question 34

What if there is a breach of an interim injunction?

Answer 34

Where mandatory order has been breached, court MAY direct required act be complied at expense of disobedient party. Breach of injunction = contempt of court (punishable by imprisonment or fines). Contempt MUST be proved beyond reasonable doubt. Delay in issuing proceedings for interim relief = failure may provide grounds for awarding damages not injunction. II can be sought without notice if case = urgent or other sufficient reason, otherwise notice not required. American Cyanamid guidelines apply to most apps for interim prohibitory injunctions.

Question 35

What are teh requirements for a **mandatory interim injunction?**

Answer 35

require R to do defined action. Requirements for II, must establish: 1. Court had jurisdiction 2. C must have cause of action 3. “just and convenient” to grant injunction Usually MUST be a **named Defendant.** Can have injunction against “person unknown” where possible to serve on other named D who would bring injunction to attention of unknown D.

Question 36

What is an injunction order?

Answer 36

Order MUST set out what R must do/not do. Order in presence of all parties MAY state its effective until trial/further order. If made **without notice** = injunction order MUST state return date for further hearing. Order made without notice MUST include R’s right to **apply to set aside/vary order** within **7 days** after service.

Question 37

What are without notice injunctions?

Answer 37

usually granted for 7 days. Both apps **are not appeals**. Without notice injunction MAY be varied/discharged.

Question 38

How are without notice injunctions discharged?

Answer 38

Can be discharged if: 1. Essential conditions not satisfied 2. D has defence so no serious issue to be tried 3. Breach od duty of full + frank disclosure

Question 39

How are without notice injunctions varied?

Answer 39

Can be *varied* if: 1. Order made too wide 2. Order fails to include undertakings to protect third parties

Question 40

What are notice injunctions?

Answer 40

As D has notice, they can only be discharged/varies by D if material change of circumstances. Otherwise, only route is to APPEAL.

Question 41

What court must be used for **search orders and libel claims?**

Answer 41

**HIGH COURT OR COUNTY COURT:** HC MUST be used for *search orders* and libel claims Otherwise, unless substantial claim been issues, A can choose HC or CC