What are mandatory and prohibitory injunctions?

 What is an injunction

An injunction is an order of the court requiring a party to do or refrain from doing something. If a person fails to comply with an injunction order this may constitute a contempt of court. Injunction is obtainable at a trial however if there is a need for it to be obtained at an earlier stage, it is still possible to obtain an interim injunction which would be in place until the trial takes place and the decision will be made. The injunction which is final is called perpetual injunction. The injunction obtained before the trial takes place and which is only temporary is called interim injunction. Injunctions can also be mandatory or prohibitory. In case that no wrong has yet been committed, it is still possible to apply for an injunction, this sort of an injunction is called ‘quia timet’. This sort of injunction can be obtained, for instance, if the other party threatens to do something but has not done it so far e.g. demolishing a building etc. Therefore in order to prevent the other party to demolish the building, it is necessary to apply for such an injunction. Granting of an injunction is within the court’s power and the discretion. It is essential to remember that application for an injunction is only a remedy; it is not a cause of action, it is necessary to have ‘a pre-existing cause of action within the court’s jurisdiction’. Therefore it is not possible to sue for an injunction unless it is a freezing injunction.Freezing injunction will be considered below.

‘Pre-existing cause of action’ means that the respondent invaded or threatened to invade the applicant’s rights or that the respondent has behaved in an unconscionable manner. In order for the court to award freezing injunction, damages must be an inadequate remedy. The court would not award an injunction if there is a possibility of some other more appropriate remedy being awarded. Damages are an inappropriate remedy to be awarded 1. If there is a danger of the harm which is serious and is also likely to continue, 2. If the damage caused is irreparable, 3. If the harm is not possible to be quantified in financial terms, or 4. If the respondent cannot afford to pay or has no means to pay damages.

Freezing injunction

A freezing injunction is an order made by a court which prevents the party from removing the assets located within the jurisdiction out of the jurisdiction or from dealing with these assets. In normal circumstances such an order is restricted to the value of the assets which equals to or is not higher than the value of the claim. The purpose of such an injunction is to prevent the dissipation of the respondent‘s assets. The court has the power to grant freezing injunctions which apply to England & Wales but also worldwide freezing injunctions which apply worldwide. Freezing injunction is normally granted by the High Court. However in limited circumstances the same can be issued at County Court. The effect of such injunctions is that certain assets of the respondent (up to the value of the claim) will remain frozen for a certain period of time and may not be removed by the respondent. The list of assets would be specified in the order. The respondent can spend some money each week but such an amount will have to be reasonable. If the respondent breaches the terms of this order he will be in contempt of court. The copy of the order will be send to some other parties so that those third parties may also prevent the breach of this order and they do not run the risk of the order being breached. While the respondent’s assets are frozen, the applicant will continue with the proceedings. The court is allowed to grant such an injunction if it thinks that it is just and convenient to do so. It is still however in the court’s discretion not to grant a freezing injunction if to do so would not be in the interests of justice. In order for the freezing injunction to be granted there has to be a substantial cause of action justifiable in England and Wales. There also has to be a good arguable case, the respondent has to have assets within the jurisdiction, and there is a real risk that the respondent might remove these assets from the jurisdiction in order to hinder the enforcement of the judgment.

Mandatory injunction

Mandatory injunction requires a party to do something e.g. ordering the other party to deliver documents etc. The court will normally grant a mandatory injunction in the following circumstances; 1.The applicant will suffer serious harm if the same is not granted, 2. The applicant will most likely succeed at trial; 3.The respondent will not incur expenditure which would be disproportionate to the applicant’s harm. 

Prohibitory injunction

Prohibitory injunction requires the other party to refrain from doing something e.g. ordering the other party not to publish an article etc. The case law has created guidelines for imposing prohibitory injunctions. The guidelines consist of various issues to consider and are as follows;’ there must be a serious question to be tried.’ The court then has to consider where the balance of convenience lies and in order to decide this, the court must consider the following; whether the damages are adequate remedy and whether the respondent is adequately compensated by the applicant’s undertaking in damages. The court finally has to consider the merits of the case. There are however some exceptions. 

Procedure

Both the claimant as well as the defendant can apply for an interim injunction. In this case the parties will be referred to as the applicant and the respondent. The application can be made after the proceedings were issued.