At the heart of almost all civil litigation – whether in relation to alleged breaches of contract or other kinds of civil wrongs – is a claim for financial compensation (‘damages’). Although damages may be the primary (or indeed only) remedy sought by a claimant in civil proceedings, it may not be the only one. In this post, we’ll take an introductory look at injunctive relief.
An injunction is a court order. Basically, it is an order which is designed to:
· order a person do stop doing something. This is called a ‘prohibitory injunction’. An example might be an order for specific performance of a contractual obligation.
· order a person to do something. This is called ‘a mandatory injunction’
Although an injunction is a remedy which can be ordered by a court, it is important to remember that, under English law, there is a distinction between a ‘legal (or common law) remedy’ (such as damages) and an ‘equitable remedy’ (such as an injunction). Common law remedies, such as damages, are available ‘as of right’. As an equitable remedy, it is important to remember that an injunction is a discretionary remedy, meaning that the court may refuse to make an order, depending on all the circumstances of the case (including taking into account what may be called ‘moral’ considerations when deciding whether to grant the injunction).
In terms of the length, or duration, of an injunction, it is important to remember that there are essentially two possibilities:
· an injunction may be ‘final’. This is sometimes called a ‘perpetual injunction’. This is an injunction which is ordered after trial.
· an injunction may be granted, during the course of legal proceedings (or, exceptionally, before legal proceedings have been begun), on a temporary basis. This type of injunction is called an ‘interim injunction’ and remains in force until the trial or it is discharged by the court. At trial, the court may decide to make an interim injunction ‘final’.
It is also important to remember that failing to comply with an injunction is a serious matter. A breach of the injunction can lead to the breaching party being in contempt of court (which can be punished by imprisonment). Because of this, any order for an injunction must be in very clear terms, such that the party injuncted knows precisely what they must, or must not, do under those terms.
In terms of interim injunctions, these are more commonly ordered in relation to prohibitory injunctions than mandatory injunctions. Usually, very good and clear evidence is required before a court will order someone to do something (rather than not do it).
So, where does the power for courts to grant injunctions come from under English law? The answer to this is section 37 of the Senior Courts Act 1981. Subsection 1 of that section provides:
“(1) The High Court may by order (whether interlocutory or final) grant an injunction…………… in all cases in which it appears to the court to be just and convenient to do so.”
In other words, there are certain constraints on the power of courts to grant an injunction.
A longstanding principle for granting an injunction has been that, in order to grant an injunction, an underlying claim must exist. In other words, the party applying for an injunction must have a substantive cause of action against the party they are seeking the injunction against. The position here has been significantly affected – in relation to certain kinds of injunction - by a recent decision of the Privy Council in the case of Broad Idea International Limited v Convoy Collateral Ltd and Cho Kwai Chee  UKPC 24 (judgment handed down on the 4th October 2021), which we will take a look at in another post very soon.
Additionally, as we said earlier, it is also important to remember that injunctions are a discretionary remedy. They are not available ‘as of right’. Equitable rules apply to an application for an injunction, which means, for example:
· that any delay in applying for the injunction may lead to the application for the injunction being refused
· that the party applying for the injunction must come to court ‘with clean hands’. In other words, they cannot have acted wrongly or unfairly themselves.
Injunctions may be granted by the court ‘on notice’ or, sometimes, ‘without notice’. An ‘on notice’ injunction means that the other party (the one against whom the application is made) is told of the application and also when and where the application will be heard. Some situations may exist where the other party may not be put on notice of the application (for example, because the application is extremely urgent or because putting the other party on notice may lead to the other party doing things which may defeat, or frustrate, the purpose of the injunction).
An injunction has several possible uses. In a commercial context, for example, some of the most important types of injunction that a court may grant include:
· a freezing order (sometimes called ‘a freezer’). The purpose of this type of injunction is to prevent a party from taking or dissipating assets in a way that could damage the interests of the applicant (for example, to make any court judgment against the other party meaningless, or ‘empty’, because there are no longer assets within the jurisdiction to satisfy that judgment
· a disclosure order. The purpose of this kind of order is to allow the applicant to apply for disclosure of particular documents or evidence, either before or during court proceedings
· a search order. This allows a party to search for, and seize, documents and other material which the other party may try to dispose of
· a delivery up order. This orders a third party to hand over documents or evidence to the applicant.
Injunctions, of course, can be granted in other cases and for other purposes. For example, to order , party to a contract to perform it (an order for specific performance), to prevent the publication, or continued publication and sale, of written material (books, newspaper articles, etc), or to prevent the infringement of some intellectual property right (such as a trademark).
Before granting an interim injunction, a court may, and usually will, require the applicant to give what is called a ‘cross-undertaking’ in damages. The purpose of this is to ensure that if, at a later date, it is decided that the injunction should not have been granted, or should be discharged for some other reason, the other party is compensated in relation to any harm it has suffered because of its grant. The ability of the applicant to meet any potential liability in relation to this is a factor the court will take into consideration, among others, before granting the injunction applied for.
Note: This post is for information and educational purposes only. It is not, and is not intended to be, legal advice. If you need legal advice, you should contact an appropriate lawyer.
© Cambridge Legal English Academy 2021