#14716 - Interim Prohibitory Injunctions - Civil Litigation

Cause of Action

An injunction cannot exist in a vacuum, it is a remedy to a cause of action. The claimant must have a legal cause of action in tort or contract in order to apply for an interim prohibitory injunction.

Guidelines

Injunctions are equitable and discretionary. The court will apply the American Cyanamid guidelines to decide whether to grant the injunction.

Is there a serious question to be tried? The claim must not be vexatious or frivolous; this is a low threshold for the claimant to meet.

Would damages be an adequate remedy for the claimant? Is the harm serious? Is the harm irreparable? Is the harm difficult to quantify? Will the respondent have difficulty paying damages [cite financial details]?

Would damages be an adequate remedy for the defendant if the injunction was found to be wrongly granted? Will the applicant have difficulty paying this compensatory damages [cite financial details]?

Where does the balance of convenience lie? Consider the commercial impact of granting or not granting the injunction - e.g. effect on market, business, profit, every day working life, employees, contractual obligations etc.

Where factors are evenly balanced the court will maintain the ‘status quo ante’ (i.e. the status quo before the conduct complained of).

What are the merits of the claimant’s case? Note this is not a mini trial.

Equitable Maxims

As interim prohibitory injunctions are discretionary and equitable the court will apply the relevant equitable maxims which include:

He who comes to equity must do so with clean hands;

Delay defeats equity; and

Equity will not act in vain.

Notice

The application can be made without notice if it is justifiable - i.e to stop confidential information being leaks or to stop the injunction becoming redundant etc.

Undertakings

Under 25 PD 5.1 the applicant may be required to give an undertaking in damages if it is decided that the injunction was wrongly granted. The undertaking will be to compensate the respondent.

Without Notice Procedure

Prepare the following documents: the application notice on form N224 (CPR 23.3/6 & 23A PD 2), evidence in support (CPR 25.3(2) & 25 PD 3.2(1)) and a draft order. The evidence should establish:

The cause of the action;

Why the injunction should be granted

Why the application is made without notice;

The applicant has the ability to make a cross undertaking in damages

Without notice hearing is held; order is granted;

The above documentation is served on the respondent along with a copy of the undertaking in damages (25A PD 5.1(1)) and a note of the hearing;

On notice hearing is held (25A PD...