#10351 - Interim Injunctions - BPC Civil Litigation

INTERIM INJUNCTIONS (IIs)

• injunction = a court order prohibiting a person from doing something (prohibitory) or requiring a person to do something (mandatory)

• any party can apply

• need substantive cause of action

WHICH JUDGE? (PD25A para 1)

• judge who has jurisdiction to try claim; OR

• HC master / HC DJ by consent; OR

• coco DJ if has trial jurisdiction (small claims / fast track)

WHEN TO APPLY? (r25.2)

• after D has filed AoS / defence

PRE-ACTION WITHOUT NOTICE INTERIM APPLICATION - REAL URGENCY

• C may apply pre-action if:

1. matter is urgent; OR

2. otherwise necessary / desirable to do so in the interests of justice

• can also be without notice if no practical possibility of giving 3 clear days' notice

• give informal notice (unless secrecy required)

• court often dispenses with application notice - will require undertaking to file app notice and pay fee on same or next working day

• almost always considered at a hearing (but without full / any notice to respondent)

Application dealt with at court hearing (usual) e.g. just before court opens - get priority in the list

• if possible, file application notice + evidence + draft order 2 hours before hearing

• apply before issue of app notice - provide draft order at hearing + file app notice and evidence on the same or next working day or as ordered by the court

• apply before issue of claim form - give undertaking to issue claim form immediately or court will give directions for the commencement of the claim (para 4.4)

Application dealt with by telephone (EXTREME urgency) e.g. court closed i.e. after 5pm

• usually fax draft order to judge

• must file app notice + evidence + 2 copies of order for sealing with court on same or next working day as ordered

The pre-action order

• if granted, court may give directions requiring a claim to be commenced (r25.2(3))

• if app made before issue of claim form, serve claim form with order (PD25A para 4.4(2))

• must include

  • undertaking to serve app notice + evidence + any order made as soon as practicable

  • return date for further hearing at which respondent can be present

  • statement of right to apply to set aside or vary the order within 7 days after service (r23.10)

APPLICATIONS DURING PROCEEDINGS

• same as for other on notice interim applications

• file skeleton argument

THE ORDER

Contents

• penal notice on front page warning D that breach may result in imprisonment, punishment, fine or sequestration of assets (r81.9)

• undertakings given by C:

  • all orders must contain (unless court orders otherwise) (PD 25A para 5.1)

    • undertaking to pay fee

    • undertaking to pay damages

      • if order made before filing app notice = undertaking to file app notice and pay fee on same or next working day

      • if order made before issue of claim form =

        • undertaking to issue claim form and pay fee on same or next working day; or

        • directions for commencement of claim

  • orders for without notice applications must contain

    • must include (unless court otherwise orders)

      • undertaking to serve app notice + evidence + any order made as soon as practicable

      • return date for further hearing at which respondent can be present

      • statement of right to apply to set aside or vary the order within 7 days after service (r23.10)

Terms

• injunction must be worded with a very high degree of precision, so D can know with certainty what is and is not permitted, otherwise won't be granted

Personal service

• unless court dispenses with service (r81.8) must be personal so can be enforced in committal (rr81.5 and 81.6)

THE TEST

STEP 1: Court's discretion

• HC may grant an injunction if it appears to the court to be just and convenient (may be just and proportionate in light of HRA) to do so

STEP 2: American Cyanamid

1. serious issue to be tried?

   • does claim have substance and reality?

2. would damages be an adequate remedy for applicant?

   • damages inadequate if:

     1. D can't pay

     2. wrong irreparable

     3. damage non-pecuniary

     4. no available market to turn to for alternative

     5. damages difficult to assess

     6. contractual liquidated damages lower than probable loss from breach

3. if damages would be inadequate, does C's undertaking in damages provide adequate protection?

   • aim = to compensate D if injunction wrongly granted

   • general rule: always required, may extend to third parties

   • NOT decisive stage legally aided C can be granted II

   • NOT required if Crown or LA seeking II to enforce law

4. balance of convenience

   • will granting / refusing will cause irremediable prejudice to either party?

   • court considers e.g.

1. prejudice to C / D if injunction not granted / granted

2. likelihood of such prejudice occurring

3. extent to which damages would be compensatory

4. likelihood of each party being able to pay

5. likelihood injunction will turn out to have been wrongly granted / withheld

   • relevant factors

1. being deprived of employment

2. damage to business through picketing

3. damage to goodwill of a business

4. closing down a factory

5. possibly company being wound up

6. disruption to third parties

7. public interest

8. length of time to trial (shorter, more likely to grant)

   • if factors evenly balanced

     • status quo

       • if no delay = state immediately preceding claim form

       • if unreasonable delay between issue of claim and issue of application for II = state immediately before application

       • duration of period since last chance must be more than minimal having regard to length of parties' relationship e.g. 10 days = minimal, otherwise, state before last change = status quo

       • special factors e.g. commercial impracticability

     • merits of the claim (last resort)

       • if no credible dispute that strength of one party's case disproportionate to the other's

       • court cannot justify anything resembling a trial

EXCEPTIONS WHERE AMERICAN CYANAMID TEST DOES NOT APPLY

Interim mandatory injunction

• overriding consideration = which course is likely to involve least amount of injustice if wrongly granted / refused

• also need high degree of assurance that C will succeed at trial (Shepherd Homes v Sandham)

• court must keep in mind that an order requiring a party to take a step may cause more injustice than a prohibitory one which preserves the status quo

• even if no high degree of assurance, may still be granted if risk of injustice on refusal outweighs risk of injustice if granted

Final disposal of claim (granting II would finally dispose of the action)

• ask:

  • if injunction refused, any realistic possibility C will wish to proceed to trial?

  • if injunction granted, any realistic possibility D will insist on going to trial?

• if neither wants to go trial, only granted if case overwhelming on its merits

Defamation

• no injunction if

  • D states in evidence in reply that he intends to set up defence of justification

  • alleged libel not obviously untruthful - heavy burden on C, who may adduce evidence to prove falsity of words

• similar principles

  • where D intends to plead fair comment on matter of public interest

  • where publication is privileged (if qualified privilege, need overwhelming evidence of malice)

Freedom of expression (any claim involving Art 10 rights)

• C obliged to take all practical steps to inform D of app to restrain publication

• C must establish case which will probably succeed at trial

  • standard flexible - lower standard if consequences of publication exceptionally grave

• court must have regard to: freedom of expression, whether material is available to the public and whether it is in the public interest for it to be published

Copyright and confidentiality (Art 8)

• no injunction if:

  • copyright action + defence of fair dealing

  • breach of copyright + defence of public interest

• no defence American Cyanamid

Super-injunctions

• radical departure from open justice principle, therefore rare

Cases raising conflicts between arts 8 and 10

• if both engaged, court has to balance competing interests (neither article automatically outweighs other)

  • is info protected by art 8? protection lost if info already in public domain

  • should art 8 yield to art 10?

    • if breach of confidence, can justify restriction under art 10(2) is limit necessary in a democratic society

    • if no breach of confidence, weigh nature and consequences of art 8 breach against public interest in disclosure of info

Covenants in restraint of trade (i.e. promises NOT to do something)

• covenant prima facie valid (reasonable in ambit, area, duration) - C entitled to II as of right (unless trial can be arranged before covenant expires)

• use American Cyanamid if real dispute in C's case

• garden leave cases under American Cyanamid

  • if employee fails to give contractual notice period goes to work for a competitor, may get 'garden leave' injunction (where C pays D not to work for competitor during notice period)

No defence to C's claim

• usual equitable considerations

• also applies if issue is a simple point of construction

EQUITABLE DEFENCES TO INTERIM INJUNCTIONS

• acquiescence

  • encourage / allow party to believe something to his detriment + party relies + unconscionable for other party to rely on legal rights

• delay

  • need delay + prejudice to respondent

  • affects status quo

• hardship

  • considered in balance of convenience

• clean hands

• equity does not act in vain

  • no injunction

    • to restrain breach of confidence if material published

    • against child or party who can't be committed to prison / pay fine

    • if compliance difficult

• personal services

INQUIRY AS TO DAMAGES IF TRANSPIRES AT TRIAL THAT II WRONGLY GRANTED

• C applies for 'inquiry as to damages' to enforce C's undertaking

• D must show he has actually suffered loss as a result of undertakings, and what that loss is

• successful D's app will only be...