#3713 - Interim Injunctions - BPC Civil Litigation

In cases of urgency an application can be made before issuing proceedings and without notice (this is without 3 days notice, but the application should give the defendant some notice, e.g. by phone).

1. Special form for applying for injunctions (N16A) must be used;

2. Must state the order sought and date, time and place of hearing;

3. It must be supported by evidence;

4. A draft order should also be provided.

Applications for mandatory interim injunctions

This type of injunction, requiring the defendant to take certain action, will only be ordered if the judge has a high degree of assurance on the merits. This is more difficult to establish than serious issue to be tried, which is a low threshold.

The mandatory nature of the order may also be reflected in the discretion to grant the order.

Applications for interim injunctions that will finally dispose of the claim

This exception is where neither side is realistically going to take the case to trial if the interim injunction application went against them. There is some flexibility over the approach to the merits requirement in this category, but typically the court insists on a very strong case, such as an "overwhelming case" or a case with a "high degree of assurance". This reflects the need to comply with the fair trial obligation in the ECHR, art 6(1).

The final disposal aspect may also be reflected in the discretion to grant the order.

Cases where there is no arguable defence

In cases where the defendant has no arguable defence to the claim, American Cyanamid principles will not be applied, and the court will grant relief on ordinary equitable principles.

However, it would be simpler for the claimant in these cases to simply apply for summary judgment and obtain a permanent injunction.

Applications to enforce covenants that restrain trade

Employment contract will often contain clauses that restrain the employee from certain trade during and after the contract. Where the employee acts in breach of this covenant, an injunction will be awarded if the covenant is prima facie valid. A covenant is considered valid if:

1. All the facts are before the court; and

2. The covenant is reasonable in ambit, area and duration.

However, if there is come debate as to whether the employee is in breach of the contract, normal American Cyanamid principles will be applied.

Defamation cases

Where the interim injunction is intended to restrain defamation, it will not generally be granted where D intends to plead justification (truth). There are therefore 2 conditions:

1. D must state in the evidence in reply that his defence is justification; and

2. The alleged libel must not be obviously untruthful.

Freedom of expression cases

The HRA...