Chris Guy of Rubric Lois King, Solicitors in Birmingham, Shares his Knowledge on Interim Injunctions
Here at Rubric Lois King, Solicitors in Edgbaston, Birmingham, we can assist you in obtaining an Injunction. Or, if you are subject to or threatened with such a Court Order, we can defend you. An Injunction (a.k.a. Injunctive Relief) is an Order of the Court which either compels a party to take specified steps (known as a mandatory injunction) or restrains them from taking specified steps (known as a prohibitory/negative injunction).
Such an Order is made by an application to the Court for injunctive relief, prior to a trial of the issues in dispute. An Injunction is issued to avoid any loss that might be suffered by a party whilst waiting for a trial. This can be particularly useful when something has already been suffered by a party, or to prevent it from occurring at all.
RLK Edgbaston Solicitors: Recent Successful Injunction Applications
In February 2019 we successfully obtained an Injunction Order against a Company Director threatening to liquidate a company. This was to prevent him from winding up the company, appointing a shareholder as a Director and providing disclosure of various company records and documents.
Another example is when we recently acted on behalf of a company whose brand/image was threatened by another company’s use of suspect packaging.
An Injunction Order: General principles
An Injunction leaves the Court with serious considerations to make, and can be considered a very draconian action. By stopping a party from doing something, or alternatively, making them perform a certain action, arguably interferes with a person’s human rights. A case from 4 decades ago (American Cyanamid v Ethicon  A.C. 396 – which granted a party an Injunction preventing another company from using a certain type of medical material) laid down principles which the Court must consider before granting an Injunction. These are:
- Is there a serious issue to be tried?
This is a threshold test set by the Court. The party applying for the Injunction is not required to prove a strong case. Instead the applicant needs to convince the Court that an Injunction is not too frivolous or vexatious, and has some prospect of succeeding.
- Does the balance of convenience favour the grant of an Injunction?
In calculating this, the Court can take into account:
Whether damages would provide an adequate remedy for the party applying?
Whether the undertaking as to damages would provide adequate protection for the Defendant?
Whether the Injunction will help to preserve the present position (the status quo) until the trial? This is normally in the applicant’s favour, unless the applicant delays their application to the Court.
Whether there are any other factors, including social and economic factors, to be taken into account (including the public interest)?
The relative strength of the parties’ cases. This can be controversial as the Court could be in danger of pre-judging without trial if both parties give their evidence at this stage.
Undertaking for Damages
Often the Defendant may not even be aware of the application for injunctive relief. Or even if they are, it is usual to be given little or no notice of the first hearing, and their opportunity to oppose the application. For this reason, there is a risk the Court may make an order that affects the Defendant financially (which had that party been able to give evidence at the hearing, might never have been found in the favour of the applicant)
Therefore, the applicant must promise to pay the opponent compensation if they later fail to establish their right to the Injunction. This is often referred to as a ‘cross-undertaking’. This is an undertaking (or promise) to the Court. Usually, an applicant is required to show the Court they can afford to pay such damages, should it become necessary. This is usually done by disclosure of bank statements/property details.
Interim Injunction Hearing
Depending on the circumstances (and urgency), hearings are heard either ‘on notice’ or ‘without notice’. In other words, the opposition is either informed about the injunction hearing or not. When a ‘without notice’ application is heard, it will be for the applicant to convince the Court why it is necessary or urgent to not inform the Defendant. For example, if the other party were told, then they would destroy or get rid of documents, evidence or property before the hearing. Additionally, depending on the circumstances, the Court will either hear one side or both sides’ evidence. Again, it is for the applicant to show the Court their case is so strong that the other party’s evidence should not be heard at this stage. Following the Injunction, there will usually be a ‘return date’ where the parties return, and a decision is made following hearing all parties, or potentially a trial. Alternatively, the interim injunction hearing may have the desired effect, and therefore there is no need for the parties to return to the Court.
Costs of an Injunction
By their very nature, Injunctions are typically urgent and fast paced. With any instruction of this type we must act extremely quickly in order to get the best possible result to protect the client. Such cases evolve rapidly and thus estimating likely costs is very difficult. Factors which affect this include the number of parties, number of witnesses, the amount of relevant documents/correspondence and whether the opponent is made aware of the hearing.
In addition to legal fees, Court fees are also applicable. If it is the case that the amount of the claim (for damages) cannot be predicted, the Court issue fee is £528 and an application fee is £255.
RLK Solicitors would be delighted to assist you in any aspects of injunctive relief proceedings, or commercial litigation generally. Please click here to contact us.
By Chris Guy, Solicitor
7 February 2019
Chris Guy is a Solicitor at Rubric Lois King, a firm of solicitors based in Birmingham’s Calthorpe Estate. The firm’s litigation team specialises in civil & commercial litigation and dispute resolution. For further information regarding litigation services or funding agreements, call 0121 450 7800 or send an e-mail to: firstname.lastname@example.org.
** This article does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to provide information on issues that may be of interest. Specialist legal advice should always be sought in any particular case. **