An Injunction is an equitable remedy in the form of a Court Order that usually requires a person to do or refrain from doing something.
However, they may also require a person to positively do something to prevent what would be unlawful conduct leading to damage to the claimant. Injunctions are discretionary remedies and it is for the judge to decide after considering a series of factors whether justice would be served in the circumstances by granting the Order.
Injunctions will not be available unless the case presents exceptional circumstances such as if the loss or damage that would be sustained by the Claimant would not be satisfactorily compensated by an award of money. Injunctions may be granted on an interim or final basis.
The most frequent form of these orders is in the negative, in that the order will require someone to refrain from performing or doing some act in the future. However, they can be used to stop someone who is already doing the act.
Example of when Injunctions would be used include:
- Damaging statements to a business;
- Publication of libelous material;
- Passing off;
- Unlawful use of trademarks and other confidential information;
- Infringement of intellectual property rights (including copyright, designs, trademarks, patents and breaches of confidence);
- Enforcing the terms of an exclusive license;
- Excessive noise or nuisance;
- Trespass to goods or property.
Interim and Final
An interim injunction may be granted to maintain the status quo between the parties leading up to the final hearing of the dispute. Interim Injunctions may also be awarded to assist the enforcement of rights; such interim injunctions are freezing orders and search orders. They can also be applied for prior to a claim being issued.
Where the Court grants an interim Injunction, the Court’s decision would be based solely on the evidence it heard at the interim hearing. If the Defendant goes on to win at trial the Court will have to consider whether the interim Injunction caused loss to the Defendant. If the Court considers that the Defendant has suffered loss or damage in the interim then they will be compensated for such loss. Therefore, when applying for an interim Injunction the Claimant usually has to give a cross undertaking in damages to the Defendant.
A final Injunction may be granted after the outcome of a hearing and may be awarded ‘in perpetuity’ i.e. until it is discharged by the Court.
Without Notice Injunctions
A Without Notice Injunction can take two forms. It will either:
- Set a date for an Injunction hearing; or
- Grant an Injunction and inform the defendant that he can apply for the Order to be set aside or varied.
In the first instance, the Injunction will last until the hearing date. At the hearing the Court will decide whether to set aside the Injunction or make it final. In the second case, the interim Injunction will remain in force until the trial or further Order.
Factors the Court will take into account
(1) That the claimant can show that there is a serious issue to be tried.
(2) That the court considers where the balance of convenience lies.
The important things to consider here are:
- The court’s ability to quantify the likely damages;
- The sufficiency of the claimant’s cross-undertaking in damages (if the Defendant is successful at trial); and
- The sufficiency of the Defendant’s financial resources to compensate the claimant (if the Claimant is successful at trial).
- If there is no imbalance, then the status quo is preserved.
If you need to protect yourself or your business A City Law Firm Limited can help you build up a strong case to convince a court to grant you an order. We will advise you on the type of evidence you need, costs and represent you at the hearings.
For more information contact us…
0207 426 0382