What are mandatory and prohibitory injunctions?

What is an injunction?

An injunction is an order of the court requiring a party to do something (a mandatory injunction) or to stop doing something (a prohibitory injunction). If a person fails to comply with an injunction order this may constitute a contempt of court.

An injunction may be needed to preserve or stop the loss of an asset, protect against personal harm, avoid loss or damage to reputation and defend business or personal interests.

An injunction can be obtained once court proceedings have begun or at their conclusion (to last forever or until a specified date). If the matter is urgent or in the interests of justice, it is possible to obtain an interim injunction. This would remain in place for the time specified by the court, until the trial takes place, or until the court makes a further order.

Types of injunction

Prohibitory injunction

A prohibitory injunction requires the other party to refrain from doing something. They may be obtained, for example, to safeguard confidential information acquired in the course of business; to prevent a breach of contract; or to stop a party taking legal proceedings (an anti-suit injunction). They can be interim or final.

The court will only grant an injunction if it is satisfied on the facts that:

  • there is a serious issue to be tried;
  • it appears to the court to be just and convenient to do so and the applicant has ‘clean hands’ (eg, has not delayed unreasonably or acted improperly themselves);
  • damages would not be an adequate remedy to resolve the dispute.

Mandatory injunction

A mandatory injunction requires a party to do something (eg, deliver up goods or make available documents). The court is generally more reluctant to grant a mandatory injunction than a prohibitory injunction and will normally only grant one if:

  • the applicant will suffer serious harm if the injunction is not granted;
  • the applicant will most likely succeed at trial;
  • the respondent will not incur expenditure which would be disproportionate to the applicant’s harm.

Quia timet injunction

Injunctive relief is usually granted where there has been some infringement or alleged infringement of the plaintiff’s rights. However, even where no wrong has yet been committed it is possible to apply for a ‘quia timet’ injunction. This sort of injunction can be obtained, for instance, if the other party threatens to do something but has not yet done so (eg, demolishing a building), or if the defendant has caused harm in the past, for which the claimant has been compensated, but the claimant fears that future wrongs may be committed by the defendant.

Freezing injunction

A freezing injunction is an interim injunction made by a court which prevents the party from removing the assets out of a jurisdiction or from dealing with these assets. Assets that can be frozen include bank accounts, shares, motor vehicles and land.

The court has the power to grant freezing injunctions which apply not only to England & Wales, but also injunctions which apply worldwide. A freezing injunction is normally granted by the High Court or a circuit judge 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 and can face a fine, imprisonment or seizure of assets.

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.

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 to hinder the enforcement of a judgment.

Procedure

To apply for an injunction, the applicant must file with the court the following documents:

  • an application notice;
  • a draft order;
  • the claim form;
  • supporting evidence (eg, witness statements, affidavits and exhibits).