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 or form damage/injure the other party or his 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 excessive noise of a concert in the vicinity of the event.

It is important to note that 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. As in the above example if the excessive noise will constitute a nuisance to the other party’s property which will 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 Courts have 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. Those are normally made before a Judge and not a District Judge or a Master.

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, in support of such written evidence explaining the impossibility for notice to be given should be included. In addition, evidence of any attempts to inform the other party of the application is also necessary. Further, specific provision for ex parte applications asks for information to be given to the court not only in support of the application but also identifying any facts known to the applicant which might be adverse to their case. 

What principles would be considered?

The principles have been laid down by the authority of American Cyanamid Co v Ethicon Ltd [1975] AC 396.  The case outlines certain criteria to be considered by the courts prior to grant of an injunction.  

Serious question to be tried

Firstly, the court needs to have regard to whether there is a serious question to be tried. Therefore, the test again 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 

Secondly, the court needs to consider the adequacy of damages to the claimant. Therefore, it is discussed if the claimant was successful at trial, whether he would adequately be compensated in the form of damages for potential loss he 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 such, then no injunction should normally be granted.

Adequacy of damages to the defendant 

The next thing to be taken into account is the adequacy of the undertaking in damages as protection to the defendant. When injunction is granted, the claimant would be required to give an undertaking in damages in the event of the defendant being unjustifiably restrained from doing the act prohibited in the injunction.

Therefore, the court has to consider the adequacy of those 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 of the parties, 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.