In the first of two articles on injunctions, I provide a quick guide to injunctions in a civil law context, setting out the relevant legal and practical considerations in making or responding to applications.
Injunctions are an equitable remedy, where a court has the discretion to either order a person to refrain from doing something (prohibitory) or to do a certain act or thing (mandatory).
When is an application needed?
The Civil Procedure Rules (CPR) set out an initial list (I have only highlighted some of the typical scenarios below, the full list is available at CPR 25.1) of situations where an injunction application could be made:
• Where it is deemed necessary to place restrictions on a respondent’s ability to use their assets (known as a freezing injunction);
• Where the respondent needs to provide information about the location of property or assets (this can be in tandem with the situation above or sought on its own);
• Where it is necessary to search the respondent’s property and remove certain materials (for example, to preserve evidence such as data on computers); and
• Where the respondent is suspected of having obtained property through a tortious act (per Torts (Interference with Goods) Act 1977 section 4).
There are also other common situations not specifically listed in the CPR where an application could be made:
• Where the applicant is seeking to protect an interest in relation to property, i.e. an easement;
• Where the applicant is trying to limit or stop trespass or nuisance from the respondent;
• Where the applicant is seeking to stop the respondent from engaging in anti-social behaviour;
• Where the applicant is trying to protect property or assets in the context of trusts;
• Where the applicant is seeking to prevent the respondent (often as a former employee) from engaging in unfair competition against their business;
• Where the applicant is seeking to prevent confidential information being made public; and
• In various family law proceedings.
Injunctions can be sought on either an interim (sought before or during the proceedings for a specific period or until the final hearing is concluded) or a final (sought at the final hearing and lasting until a specified date, or permanently) basis.
The main distinction between the two is that a higher burden of proof is placed on the applicant seeking a final injunction, that of “the balance of probabilities” versus the applicant simply having to establish a “real prospect of success” in interim applications.
Will they be granted? Considerations for the court
With interim injunctions, the general starting point for the court in hearing an application is whether granting an injunction would be “just and convenient” (per Senior Courts Act 1981 section 37).
Applicants (and respondents) generally need to navigate a four-stage test (per American Cyanamid v Ethicon Limited  2 WLR 316) comprised of the following:
- Is there a serious issue to be tried (i.e. the applicant must show their claim or defence has some substance and a real prospect of success were the matter to go to a final hearing)?
- Would damages be adequate or inadequate for the applicant if the injunction is not granted?
- Would it be less inconvenient to the respondent to grant the injunction than to the applicant not to grant one (known as the “balance of convenience” test)?
- If it appears as though the balance is a fine one, are there any other case-dependent factors (with examples being how quickly the application was issued, the wording of the injunction itself, the conduct of the applicant, and if necessary, the merits of the case on the papers) that the court should take into account when ultimately deciding which party would be least prejudiced by the injunction?
It should be noted that there are different considerations for injunctions of a more “serious” nature, for example, freezing injunctions and search orders.
As for final injunctions, if they are not agreed to by the parties, if the claimant is able to establish their case at trial, and considering all the circumstances, it would be fair to grant an injunction, one can be granted.
Normally, a final injunction would not be appropriate if damages are an adequate substitute, although there are various exceptions to this. Case-law demonstrates that courts are still struggling to find the right balance on this point, with the application of the guidelines in Shelfer v City of London Electric Lighting Co  1 Ch 287 (at 322-323) proving contentious in recent years.
How do they bite, and how can you get rid of them?
A breach of an injunction can result in the respondent’s assets being taken by the court, fines, or even committal to prison.
Injunctions can be discharged for various reasons: when it is deemed to have served its purpose; it has become too oppressive; there has been a significant delay since it was granted; and also if there has been non-disclosure by the applicant in a without notice application.
CPR 23 (and CPR 25 and the accompanying Practice Direction) set out the overarching procedure for making an application. Some key points are as follows:
• The respondent should be given good notice of the application (3 days as a minimum if possible), and if the applicant is unable to give formal notice, informal notice (such as a text message or email) will assist the application. An application can be heard without notice in limited circumstances;
• The claim form (if applicable), application notice, accompanying evidence (i.e. a witness statement), a skeleton argument (if time allows) and a draft order should be filed with the court at least two hours before the hearing, or sooner, with the injunction sought in the order being drafted as concisely and accurately as possible;
• The applicant should be aware of the necessity of giving an undertaking in damages (a promise to pay the respondent compensation in the future if it is ruled the interim injunction was wrongly granted at the time), as without it, the prospects of obtaining an injunction are slim to none; and
• It is also necessary for the applicant to disclose all matters relevant to the court (including legal principles) that help or hinder their case when making the application, to allow the court to make a decision on the application (as often the respondent will not be in attendance or would have had limited time to prepare an adequate response).
Injunctions are a fascinating area of law, and I hope this article serves as a useful introduction to dealing with them in practice.
My next article on injunctions will consider them in a family law context, focussing on applications under the Family Law Act 1996 and freezing injunctions in matrimonial finance matters.
Both the Civil and Family teams at Becket Chambers are experienced in representing clients applying for and responding to injunction applications and can also offer general advice on injunctions (our recent cases are available here). If you require advice or assistance with an injunction matter, do not hesitate to contact our team at firstname.lastname@example.org.
Also, as part of our recent series of webinars, Cara Radford hosted a webinar on the range of powers available to Local Authorities under the Anti-social Behaviour, Crime and Policing Act 2014, which covered injunction applications. You can again contact our team at email@example.com to request a copy of the presentation or for any general enquiries regarding this specific area of law.