Where a legal action is taken, a claimant may wish to seek an ancillary order to prevent the defendant taking certain action and to protect assets or business interests. These court orders are known as injunctive relief, and may accompany financial damages sought by a claimant.
If the circumstances of the case are particularly urgent, a claimant may seek what is known as temporary or interim injunctive relief. Here, the court orders the defendant to cease certain conduct or take specific action pending the outcome of the proceedings to decide whether a final injunctive order should be granted.
Injunctive remedies, as opposed to financial remedies, are ultimately grounded in fairness. The court will grant or refuse on the basis of fairness, and any misconduct on behalf of the claimant may have a bearing on the court’s decision.
On what grounds will a court grant injunctive relief?
Where the conduct of a defendant is causing actual or potential damage to a claimant’s property, reputation or business interests, a claimant may seek injunctive relief. The claimant has the burden of satisfying several criteria before the court will grant injunctive relief.
- The claimant has a substantive cause of action against the defendant, which must be supported by facts and evidence at the time injunctive relief is sought.
- The claimant’s case is good and arguable.
- There is a real risk of harm to the claimant’s assets or business interests.
- It would be just and convenient to grant the injunction.
- The claimant has “clean hands” and there is no equitable bar to their claim, such as unreasonable behaviour or delay.
- Damages would not present a more appropriate remedy.
What types of injunctive relief are available?
Two forms of injunctive relief are available. The first is an order preventing a defendant from carrying out certain conduct, known as a prohibitory injunction. The second is an order for the defendant to perform certain tasks, known as a mandatory injunction.
Examples of injunctive relief include privacy injunctions, which prevent a defendant from publishing confidential materials.
What is the procedure for granting injunctive relief?
A claimant can raise an action for injunctive relief during the same proceedings as their main claim against a defendant. The claimant must apply to the court, setting out their reasons for seeking injunctive relief, including statements and affidavits, and provide notice to the defendant regarding the date and location of the hearing so they can contest.
What types of interim relief are available?
In urgent cases, a claimant may have grounds to believe that a defendant will seek to dispose of assets prior to the conclusion of proceedings, rendering a final judgement useless. There are two common types of interim relief in such circumstances: freezing orders and search and seizure orders.
In order to be effective, some orders are granted without notifying the defendant. Therefore, claimants must be able to prove the order is necessary.
If the claimant is concerned about the defendant’s handling of their assets, including investments and bank accounts, over which the claimant has a right or potential claim to, they may seek an asset freezing order. A freezing order will prevent a defendant from selling off or otherwise disposing of assets pending the outcome of court proceedings.
A court will assess multiple factors when considering whether there is a “real risk” that a defendant will dispose of assets and render them unrecoverable. These include the nature of the assets, the defendant’s financial condition, whether the defendant resides in a foreign justification and prior behaviour of the defendant.
Search and seizure orders
A search and seizure order allows the claimant to access the defendant’s premises in order to secure property or retrieve documents. Aside from protecting property to which the claimant has a right, search and seizure orders can be used to safeguard evidence for litigation.
Due to the highly invasive nature of search and seizure orders, they will only be granted if there is serious potential or actual harm to the claimant’s interests. There must be clear evidence that specific items of evidence are in fact in the possession of the defendant.
What is the procedure for granting interim relief?
Interim relief is sought through application to the court where main proceedings are being raised. If there are reasons to believe it necessary in order to preserve assets or evidence, the court will grant interim relief without requiring that notice be given to the defendant.
What are the potential drawbacks of seeking injunctive relief?
Injunctive measures will likely entail significant expense, and must be sought expediently or they will lose their effectiveness.
If a claim for injunctive relief is found to have been unnecessary at the conclusion of proceedings, the defendant may seek compensation against the claimant for losses incurred while the asset freeze was active. A claimant is bound by requirements of “full and frank” disclosure of evidence in order to support grounds for granting injunctive relief.
What if I am served with an injunctive order?
If you are served with an injunctive order you should urgently seek the advice of a solicitor. All conditions of an injunctive order must be complied with, and breaches of an order can be met with criminal sanction, including imprisonment. If certain evidence is identified in an injunctive order, it is vital that you take measures to preserve it.
Contact our Injunctive Relief Solicitors in Mayfair and throughout London
Whether you anticipate including injunctive relief in your court action, or are the subject of an injunctive order, it is important to act quickly to ensure legal compliance and avoid damage to your prospects of success in litigation.
Lewis Nedas Law holds over 40 years of corporate litigation experience with both domestic and international clients in a broad range of matters, including preliminary actions for injunctive relief. For expert advice from our Dispute Resolution Solicitors, please call us on 020 7387 2032 or complete our online enquiry form.