Court injunctions are a powerful tool in litigation. A court injunction order can force, prevent, or halt actions.
Applying to court for an injunctions is a costly process and a Court ordered injunction is not guaranteed. Injunctions are a discretionary remedy and the court is never obliged to grant one.
Court injunctions are a powerful tool in litigation. A court injunction order can force, prevent, or halt actions. Therefore, the courts have adopted a strict test. If the criteria are not met the application will not succeed.
Based on past experience we apply our judgement to explain what is achievable. If your chances of success are slim it is better to find out sooner rather than later.
Please get in touch for an initial review on prospects of injunction application success. We do provide fee estimates for each stage.
An injunction is, in essence, an emergency Court Order that prohibits a person or a company from doing a particular act or thing and/or ordering the party or parties injuncted to take certain actions. Injunctions should not be applied for just because you believe you have a strong case and want to pressure the defendant tactically. If you apply for an injunction and can’t demonstrate that your legal interests require emergency protection, it will not be granted.
If you are served with an Injunction Order, and then breach that Order, you may be held in contempt of Court and could end up in prison.
An interim injunction is a temporary injunction that is usually applied for before court proceedings have commenced.
The types of situations where an injunction may be appropriate include:
- The wrongful use of trade secrets or company data
- Employment disputes, especially breach of restrictive covenants
- Infringement of intellectual property rights
- Shareholder disputes
- Fraud and unlawful movement. hiding or dissipation of assets such as money or physical assets, documents or media.
How to apply for an Injunction
If you are applying for an injunction you must have a strong underlying claim. There are 2 ways to apply.
An application ‘on notice’ means that the defendant has been told that an application for an injunction is being made.
An application without notice means the defendant is not aware of the application.
An application without notice will only be granted if there are very good reasons for not giving notice. For example, fraud is a situation where not providing notice would be essential.
In a commercial context, where for example, you are applying for an injunction based on the wrongful use of confidential information, the use of your own trade secrets, or company data, the application will be on notice. In this scenario, your business could be at significant risk and it is common practice, before applying for an injunction in this scenario, to first warn the defendant of the possibility of legal action, through a cease and desist letter.
There are rules and procedures laid down by the Court. These include:
- The applicant must show that there is an urgency required and a real and genuine threat to the applicant’s legal rights and business interests.
- The applicant must provide an undertaking on costs.
- Full disclosure pf all material facts and evidence. This includes both facts that support you and those that do not.
When serving an application notice, the applicant must state:
- What order the applicant is seeking.
- The reasons why the applicant is seeking the order.
- If a hearing has been scheduled, the time, date and place of the hearing must be given.
Usually, an application for an interim injunction must be supported by evidence. This evidence will usually be in the form of witness statements, and as mentioned above, it must be all the evidence. This includes all the relevant facts, including matters which may be unfavourable to its case.
Failure to disclose all relevant matters in an application will likely result in the application being set aside. The court may order you to pay the costs of the other party. Failing to prepare means you are preparing to fail. The Courts do not appreciate their time being wasted, so it is vitally important to not only establish and consider the legal basis for your application, but also the available evidence.
Types of injunction orders
The types of injunction orders the Court can make will depend on the individual facts of each case. The most common are detailed below:
- Freezing Orders – A freezing injunction would usually be made in relation to a bank account. This is to prevent the defendant from disposing or dissipating assets in a way which would leave a final judgment unsatisfied. A freezing order would be served not only on the defendant but also any banks or third parties where the defendant has an identified account or assets that are being held on the defendants behalf.
- Search Orders – A search order injunction is an order that requires the Defendant to allow the claimants solicitors to enter premises to search for, copy and remove documents, information or material. For example, seizing computers or other such devices where evidence might have been stored. Search Orders are of particular use where you believe that the other party will attempt to destroy crucial evidence when proceedings commence.
- Disclosure Orders – A Disclosure Order injunction requires parties to make a reasonable search for documents which then must be disclosed.
Asset freezing orders
An asset freezing order is sought when there is risk over the other side’s financial stability. A freezing injunction can apply to worldwide assets. We have access to an international network of professionals and experts who can assist in foreign jurisdictions.
It is possible to apply for a notification injunction which requires notification of any movement of assets – this is a helpful tool. A notification injunction can be granted before the asset freezing order.
Evidence needed to obtain an asset freezing injunction
To obtain an injunction placing a freeze on any asset such as bank accounts, property or shares, the claiming party must show four points:
- A good arguable case.
- The defending party has assets – and those assets have a realisable monetary value.
- A risk that the assets will be interfered with in some way to avoid the consequences of successful litigation. For example, seeing an asset advertised for sale would amount to more than suspicion. This can be capable of satisfying the court’s requirement on this point.
A search order is the most powerful and advantageous injunction. A search order is used to preserve or obtain evidence to support the underlying claim. A search order can be used as a tool to determine whether a freezing order is required.
With a search order you can:
- Enter premises, and access files and computers;
- Search for information and documents;
- Copy the documents;
- Retain the documents for the purposes of the claim.
- If a party has suspicion that the other party will conceal or destroy evidence, then a search order is suitable.
How to obtain a search order
The claiming party has to show:
- A strong case – this is more than just a good arguable case. The courts allow flexibility.
- Potential for damage – on the basis that the other party will destroy documents relating to the claim.
- Possession – strong evidence that the defending party actually has the documents in its possession. A right to control the documents may also suffice.
- Documents on electronic storage devices fall within the court’s powers.
Defending an injunction
If no notice was given to the defendant of the injunction application and the application was successful then the defendant will have to apply to have the injunction set aside. The court will fix the date at the ex parte hearing.
We handle applications to set aside injunctions. If set aside, then the claimant will be required to satisfy its duty to compensate the defendant for loss during the period in which the injunction was in force.
If an injunction is obtained without notice (i.e. without your knowledge) firstly you must fully comply with the injunction, even if:
- You completely disagree; or
- Plan to apply to set it aside.
- Most injunction orders incorporate a penal notice. If you breach the injunction, you can be imprisoned. If an injunction is obtained without notice, then the court will fix another date to consider whether the injunction should remain in force pending the underlying litigation process continuing.
What are the defences to an injunction?
The exact defence will depend upon the circumstances. Common defences to an application for a court injunction include:
- Serious loss – if the injunction is granted, the defending party will be unable to trade.
- Collateral purpose – the claiming party’s real motive is to diminish the defending party’s business, and not to protect its own.
- The basis of a claim – the claiming party does not have a good arguable case for the underlying claim.
- Procedures – the claiming party did not disclose all material facts and documents.
In understanding that applying for or defending an injunction application is high risk and high cost, you’ll want to ensure you have experienced and savvy solicitors on your side who are specialists in injunctions. We meet all these criteria so please do get in touch.
Injunction solicitors in London
To summarise, bearing in mind the complexity and risk of applying for or defending a court injunction, you need to ensure you have the right solicitors. It is essential to prepare properly, ensure you have a strong underlying claim and have thorough evidence to support your application.
Applying to court for an injunction is a costly process and uncertain process. Injunctions are a discretionary remedy and the court is never obliged to grant one.
For all these reasons, if you need lawyers for an injunction, we have you covered. Please do get in contact.
A highly experienced, tactically astute yet practical litigation lawyer, Alex has 30 years experience in resolving disputes.