Interim injunctions in civil proceedings

Defining interim injunctions

Interim injunctions are court orders used to prevent a party from doing a particular act, which will in some way damage/injure the other party or their property. The remedy could be available where an alleged wrongdoing is to be carried out in the future and there is not enough time for the dispute to be brought to court and resolved before the damage is done. The relief is both temporary and discretionary.

The remedy is designed to protect the innocent party and avoid potential injustice by effectively pre-empting the wrongful action from occurring, as opposed to waiting for damages to be caused to start proceedings.

Interim injunctions are also a useful means of protecting parties from being injured in a way that is unquantifiable in monetary value. For example, ruining someone’s wedding day by the excessive noise of a nearby concert.

A right to obtain an interim injunction is not in itself a cause of action. There needs to be a pre-existing action in law upon which the injunction is based. To use the above example, the excessive noise would constitute a nuisance to the other party’s property and this would be the underlying cause of action.

In which courts can injunctions be granted?

All types of interim injunctions can be granted by the High Court. However, the county court has a limited jurisdiction with regards to those orders. In particular, no search orders can be granted in a county court and there are limited circumstances where freezing injunctions are available.

Therefore, where the county court has no power in respect of such orders, the application must be made in the High Court.

What is the procedure?

An application may be made by any party to an action or matter irrespective of whether the claim for injunction was included in the originating process or not.

Applications can be made before the issue of originating process in urgent cases or where it is in the interest of justice to do so. In those situations it could be made without notice. The test for whether an application should be made on notice is whether there has been a true impossibility for notice to be given to the other side. Normally notice would be of at least three clear days.

If an application is made without notice, written evidence explaining the impossibility for notice to be given should be included. Evidence of any attempts to inform the other party of the application is also necessary. Any facts known to the applicant that might be adverse to their case should also be provided.

What principles would be considered?

The case of American Cyanamid Co v Ethicon Ltd (1975) outlines the criteria to be considered by the courts prior to grant of an injunction.

Serious question to be tried

The court needs to decide whether there is a serious question to be tried. Therefore, the test asserts the need for existence of an independent legal action. Where the claimant is relying upon an action unknown in law, the condition would not be satisfied. Otherwise, the hurdle is fairly easily overcome.

Adequacy of damages to the claimant

The court needs to consider the adequacy of damages to the claimant. The court will examine whether the claimant, if they were successful at trial, could be adequately compensated with damages for the potential loss they would have sustained had the defendant carried out the wrongful action. If it is considered that damages are an adequate remedy and the defendant is in a position to pay them, no injunction should normally be granted.

Adequacy of damages to the defendant

When an injunction is granted, the claimant must give an undertaking in damages in case the defendant is found to have been unjustifiably restrained from doing the act prohibited in the injunction. Therefore, the court has to consider the adequacy of those potential damages in the event of the defendant being successful at a subsequent trial.

Balance of convenience

Wherever there is doubt as to the adequacy of the remedies in damages available to either party, the question of balance of convenience arises. The court considers which party the balance of convenience favours, taking into account the status quo immediately before the application. Of further importance are the merits of the case.

All of the above factors are to be determined on the basis of the individual case. The relief is discretionary and that discretion is exercised in light of all the circumstances of the case.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.