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Injunctive relief is a legal remedy granted by the court on the application of a party to require a defendant to either do something (a mandatory injunction) or to stop them from doing something (a prohibitory injunction) in order to protect property, reputation or business interests. Injunctive relief is an ancillary order and can be ordered alongside financial damages sought by the claimant. The award of this type of injunction requires the defendant to cease from certain actions or to take specific action pending the outcome of the proceedings, which is when a final injunctive order can be granted. If a party breaches an injunction, then they can be held in Contempt of Court which can ultimately lead to imprisonment.

The court will make their decision on whether or not to grant injunctive based on fairness. Any misconduct on the part of the claimant will be taken into account by the court on whether or not to grant the injunctive relief.

Grounds for injunctive relief

A party wanting an injunction can apply for it before or after court proceedings have begun. It can be granted before the start of proceedings in urgent cases where a claimant can seek interim (or interlocutory) injunctive relief. This will be applicable in cases where there is a real risk of funds being dissipated or evidence being destroyed.

Injunctive relief is discretionary and, if the claimant is to be successful in being granted injunctive relief, they have to satisfy several conditions:

  • The claimant must show that they have a substantive cause of action against the defendant. They have to support this with facts and evidence and this has to be provided at the time the injunctive relief is requested.
  • The claimant has to prove that they have a good case and that it can be argued.
  • The claimant also has to show that there is a real risk of harm from the defendant in relation to their assets, reputation or business interests.
  • The court must be convinced that it is just and convenient to grant the injunction.
  • The court also has to be persuaded that granting damages is not more appropriate.
  • There cannot be an equitable bar to the claim (this would result from either unreasonable behaviour or delay).
  • The claimant must have "clean hands".

Interim injunctions

Interim relief can be either "ex parte" or "inter partes". Ex parte applications mean that the court will only hear from the party seeking the injunction. Inter partes injunctions involve the court hearing arguments from both parties. The application can also be "without notice" or "on notice". Where it is "ex parte on notice", the other side can attend the hearing and make some limited representations but cannot give their full case. The court has to be satisfied that there is a strong enough case to warrant proceeding without hearing from the other party. The party making the application must disclose all facts that are relevant (including statements and affidavits) and they must also detail any facts that undermine their case. If they fail to do this, then the injunction can be set aside and the party that applied for the injunction can be made to pay the other side's costs and damages for any harm caused by the interim injunction.

Where an interim injunction is granted ex parte, the court will generally set a future date and the interim injunction will only last until that point. At that hearing, both parties will present their case. The court can also grant the interim injunction to last indefinitely but there will be a safeguard in that the party that is subject to the interim injunction can apply for it to be varied or discharged.

Where a court grants an interim injunction, it will generally require the party that has applied for the injunction to provide a "cross-undertaking in damages". The reason for this is that it would compensate the party that is subject to the injunction for any harm that is caused if the court later determines that the injunction should not have been granted or should be discharged. These cross-undertakings can be very substantial awards in certain circumstances.

When deciding whether or not to grant an interim injunction, the court will also take into account the available funds that the party applying for the injunction has. They need to be convinced that the party has enough funds to be able to meet any liability that would arise under a cross-undertaking.

The most common types of interim injunctions are:

Freezing orders

  • Freezing orders are used where the claimant has concerns over how the defendant is handling its assets over which the claimant has a right or potential claim. The result of a freezing order means that the defendant cannot sell or dispose of their assets pending the result of court proceedings. The court has to determine that there is a "real risk" of this happening and will examine various factors such as the previous behaviour of the defendant, where the defendant resides, the state of the defendant's finances and the nature of the assets involved.

Search and seizure orders

  • This type of interim injunction gives the claimant access to the defendant's premises to allot them to search and seize items. This can be used to protect property that the claimant states they have a claim to as well as safeguarding any evidence required for a claim. This is a very invasive procedure and so will only be granted in very serious situations where there is clear evidence the defendant has certain items in their possession.

Contact our Injunctive Relief Solicitors London, UK

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 3131 5891 or complete our online enquiry form.

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