Injunctions remain a widespread legal practice which are used in a wide variety of cases and today it still is one of the most commonly sought (and granted) orders in the civil courts of England & Wales.
If you are considering taking out an injunction, have been served an injunction or simply want to know more about this particular piece of legislation, read on!
We have put together a complete guide which covers everything from what an injunction is through to the various types available, injunction application processes and the potential costs. Discover when an injunction is awarded and what to do if you are served with an injunction.
This guide has been broken down to cover the following topics.
Table of Contents
- What is an injunction?
- What type of injunction can I apply for?
- Who is able to apply for an injunction?
- How do I know if an injunction should be awarded?
- How do I go about applying for an injunction?
- I have been served with an injunction – what do I need to do now?
- At what stage does the other party need to know about an injunction?
- Have I got grounds to apply for a privacy injunction?
- Am I able to apply for a freezing order?
- An order to search premises for evidence or assets – can I get one?
- How much does an injunction cost?
What is an injunction?
Simply put, an injunction is a court order which, at its most basic, either instructs a person (or organisation) to either take a certain action or, conversely, to desist from a specific action. Orders which compel an agency (a company, individual or similar) to adopt a particular course of action are known as mandatory injunctions. Conversely, where an agent is required not to do something, a prohibitory injunction is applied for. As a court order, an injunction is enforceable and there can be penalties such as fines, or even imprisonment, for non-compliance with stated requirements.
There are numerous occasions on which an injunction can be ordered: the common principle which unites these circumstances is the need to ensure that none of the parties involved in a legal dispute is unfairly advantaged or disadvantaged by the other parties until the outcome of the dispute is known. Thus, injunctions may exist until a more permanent decision is given. As part of a judge’s verdict, they may also recommend an injunction, to prevent one side or the other accruing an unfair advantage retrospectively. Temporary injunctions are often issued to ensure a “level playing field” during a court case.
Injunctions are flexible orders, which can be carefully tailored to meet the needs of a particular case. From what’s included in the order through to its duration and penalties for non-compliance, injunctions can be tailored to fit. They may be temporary or permanent as well as having a wide range of different conditions attached to them.
Injunctions are applied for and granted through the courts. They may be tabled at any stage of the trial proceedings or sought at a separate hearing either before or after the trial.
What type of injunction can I apply for?
Detailed below is a brief description of the various types of injunction which may be applied for.
Note that in some cases two different types of injunction can be combined. The injunctions described here are primarily commercial injunction options and may not be suitable for personal disputes. There are a number of other variations that can be applied for in other circumstances.
A freezing injunction
This is an injunction which prevents the other party from disposing of, or dealing with, assets in a way which may place them at an unfair disadvantage. In a case of fraud, for example, an injunction might be used to prevent an agency from disposing of assets which could provide evidence of illegal activity. It can also be used to stop agencies benefiting from their crime – for example, if a breach of copyright is suspected, a party may be forbidden to sell further copies of the work which is suspected of being sold in breach of copyright. A freezing injunction is intended to prevent people or companies profiting from illegal activity and also to prevent them from disposing of assets in order to reduce liability or otherwise thwart the court’s pursuit of a just outcome. Freezing injunctions may also be used to stop parties disposing of assets in an attempt to avoid paying compensation should the outcome of the court case require this.
Norwich Pharmacal injunction
With a more restrictive reach than a search injunction, a Norwich Pharmacal injunction allows you to request particular documents or information. This information is normally data that will assist you in putting together a case in your favour. The court needs to be convinced that it is essential for a just outcome that a Norwich Pharmacal injunction is issued before they will grant one.
A search injunction is a court order which gives authority for you (or your agent) to search the premises of the other party in order to recover material that constitutes evidence of wrong-doing. This is similar in nature to a police warrant (the police have to apply to court for a search warrant and must present a strong case for why one is required). A search injunction may be granted in addition to any search warrant the police have been issued with. A search warrant may enable data, items or other evidence to be retrieved and held until the case is resolved. Search injunctions are rarely granted and you would need to make a compelling case for one to be issued.
Other types of injunctive relief
The three injunctions described above are not intended to be an exhaustive list and merely represent just a few of the more commonly granted injunctions.
The court has at its disposal a range of interim orders that it is has the power to grant and so far as interim injunctive relief is concerned such orders include:
- Orders requiring a party to provide information about the location of property or assets. Such orders are normally supplement a freezing injunction.
- Orders requiring delivery up of property, pursuant to section 4 of the Torts (Interference with Goods) Act 1977
- Springboard injunctions to restrain unlawful competition by directors and employees.
- Anti-suit injunctions to restrain foreign proceedings.
- Privacy and confidentiality injunctions, which protect a party’s personal privacy and confidentiality in business or personal information. Two of the more commonly known orders in this field include, ‘John Doe injunctions’ and ‘Super-Injunctions’.
- Insolvency law injunctions to prevent the presentation of a winding-up petition.
- Injunctions to restrain trespass or nuisance or to protect interest related to real property including rights of lights.
Who is able to apply for an injunction?
Almost anybody can apply for an injunction in the right circumstances. Remembering the overarching principle of what purpose injunctions serve, it’s useful to look at how you might use an injunction to prevent another party wielding an unfair advantage against you in a legal setting. This means that injunctions can be awarded before, during or as a result of a court case. Injunctions are intended to both retain the status quo and prevent further damage. You do not need to have a court date or even be aware that there is sufficient evidence to launch a prosecution before you are able to take out an injunction. Detailed in question four are the three criteria you need to be aware of before moving forward with an injunction.
How do I know if an injunction should be awarded?
When considering whether to grant an injunction, the judge takes into consideration three main criteria:
Firstly, it needs to be quite clear that without an injunction in place, there is a strong probability that wrongdoing will be perpetuated (if it has not been already). If wrongdoing has already been established, an injunction will be granted if it is thought there is a strong possibility of further wrongdoing taking place unless a mandatory or prohibitive order is in place. A significant amount of evidence needs to be provided to convince the judge of this fact. Evidence that your “equitable rights” have been breached, are in danger of being breached again or will be breached should an injunction not be applied is required. A further reason for granting an injunction will be if the other party’s actions are judged to be “unconscionable” (unethical, unreasonable or disproportionate) in manner.
Secondly, it needs to be demonstrated that an injunction would be a “just and convenient” order to both make and execute. Just because there may be a technical reason to grant an injunction, it may not always be “just and convenient” to do so. For an injunction to be “just and convenient” it needs to be shown both that the injunction is necessary at that particular time (so delaying granting an injunction is highly likely to have negative implications) and that it is reasonable to grant one. This criteria is considered in the context of each individual case. What may be “just and convenient” in one set of circumstances may not be considered so in another, even if the outcome would be the same. One of the important considerations a court would determine as part of satisfying themselves that an injunction would be “just and convenient” would be to see whether the party demanding the injunction has been acting in an honest, open-handed manner. Where there is evidence that a party or individual has been acting dishonestly or unethically, they are less likely to be successful in obtaining an injunction, based on this criteria.
Thirdly, the harm caused to the party taking out the injunction could not be fully rectified through the provision of cash compensation, to be determined as part of the sentencing process. If the judge determines that the risk is mainly financial and that compensation will resolve the matter in its entirety, they are unlikely to recommend that an injunction of any sort is issued.
How do I go about applying for an injunction?
Although you do not have to have legal representation, given the complexities which application for an injunction can present, we generally recommend that you engage a suitably qualified and experienced legal professional in order to stand the best chance of success. The steps required in order to obtain an injunction are as follows:
(i) In the first instance, an application to the court needs to be filled in. This is a standard form that gives the court the basic information required to make a judgement. The application form states what type of injunction is being sought, the reasons an applicant wants an injunction and the court date for the case to be heard. In most cases, an application form is required before the injunction is processed. If there are particularly pressing reasons why an injunction needs to be served as soon as possible, it’s possible for the application form to be sent in as soon as practicable after the injunction has been served.
(ii) Alongside the application form, applicants will also have to submit evidence to support their application. This evidence is frequently in the form of an affidavit or signed witnessed statement. It may also include relevant documents that provide further evidence of the need for an injunction. It’s important to include all the facts which are relevant to the injunction, including those which might potentially result in a favourable outcome for the other party. Failure to submit all relevant information may result in the injunction being suspended or revoked.
(iii) Attend court when your injunction is decided and provide further evidence if required. Note that injunctions are usually primarily decided on the basis of the evidence put before the court, rather than on witness cross-examination.
I have been served with an injunction – what do I need to do now?
Injunctions are served either with or without notice. If you have been made aware that an injunction is being sought against you, this will mean that the injunction has been served with notice. This will give you time to prepare a suitable defence or put your side of the story when the court discusses an injunction. If you are able to adequately demonstrate to the court that the circumstances don’t warrant an injunction, it may not be granted or may be granted in a modified form.
For parties who are served with a “no notice” injunction, being served the papers will usually be the first indication you have that an injunction has been served. In the short-term, you will need to comply with the terms of the injunction, or risk the penalties which failing to adhere to the injunction can carry. If you disagree with the terms of the injunction or feel that not all the relevant information was put before the court, you may appeal the injunction decision.
At what stage does the other party need to know about an injunction?
Ultimately this depends on whether the injunction is served through the normal timetable for the court process or whether it is fast-tracked through a “no notice” route. If the former, the other party will need to know that an injunction is going to be served before the date on which the injunction is going to be considered. This will potentially give them time to construct a reasonable defence, as well as possibly allow time to carry out “further wrongdoing”, release assets so that they can’t be used as part of a compensation claim and various other activities that may prejudice the outcome of the case. For this reason, many injunction applicants apply for a “no notice” injunction. As the name suggests, this is an injunction which is decided before the other party is informed. If the injunction is granted, the first they will know of it is when they are served with the papers by a court bailiff. Note that the injunction isn’t valid until it has been served, i.e. until the respondent has received the papers. If a respondent knows in advance that an injunction is being considered against them, they may make efforts to evade the court officials who are tasked with serving papers, in order to avoid compliance for as long as possible.
Have I got grounds to apply for a privacy injunction?
A privacy injunction is an injunction which prevents the respondent from releasing information about the petitioner into the public realm which is likely to cause damage should it be brought into the public realm. There are a variety of different circumstances in which a privacy injunction may be sought: if a petitioner is being blackmailed, for example, they may seek a privacy injunction to prevent the material being made public. Privacy injunctions may also be used to stop newspapers revealing the identities of people involved in a court case. Also known as gagging injunctions, these only stand a chance of success if you already know that material which is highly likely to be damaging to your reputation if made public is in the hands of the respondent. There must also be a high probability that they intend to make it public. If a privacy injunction is to be successful, it’s vital that it is served before the information is made public. Should it be the case that the information has already been made public, it may be more appropriate to sue the respondent for libel or slander. A legal professional is best placed to advise on this matter.
Am I able to apply for a freezing order?
As indicated earlier, in order for any injunction to stand a chance of being granted, it needs to satisfy the following criteria:
a) That there is strong evidence that if an injunction is not granted, the respondent will act (or not act) in such a way that the petitioner is unfairly prejudiced.
b) That an injunction would be “just and convenient” – essentially that it is a reasonable course of action and not prejudiced by the actions of the petitioner or any other circumstances unique to the case.
c) That the petitioner actually would be unfairly prejudiced by the actions of the respondent were an injunction not be granted; further, that this could not be rectified through compensation.
These criteria need to be applied in order to obtain a freezing order. Injunctions are complex orders to obtain. A legal professional is probably best placed to advise you on the likelihood of obtaining a freezing order and what information is needed to present a suitably robust case.
An order to search premises for evidence or assets – can I get one?
Although the same criteria are used to determine whether a search order can be issued as are used to determine the suitability of any other form of injunction, it should be noted that search orders are extremely hard to obtain. Not only will the police frequently have already obtained the relevant evidence or assets using the powers granted to them under the terms of a search warrant, but petitioners need to demonstrate very strong evidence that the respondent intends to act in a way that means the petitioner is likely to be significantly disadvantaged as a result. There are also practical problems around enforcing a search order: who will do the searching and exactly what information will they be able to take away? In some cases, the information may be protected already under alternative legislation, meaning potentially costly court action may be needed to determine whether it can be released.
How much does an injunction cost?
It is difficult to put a price on an injunction, simply because each one is a little different. The services of a solicitor and/or barrister will almost invariably be needed for your injunction to stand some chance of success. Because a commercial injunction will be drafted specifically to meet your needs and is also quite a complex, multi-stage piece of court work to complete, your legal bill could be anything from a few thousand through to tens of thousands. Particularly if the respondent is likely to launch an appeal, or the evidence on which to issue an injunction is quite thin, it may take many hours of professional input to find a speedy resolution. Your legal professional should be able to give you a more accurate understanding of the costs involved, enabling you to make a sensible decision that’s right for your individual needs.
Used correctly, court injunctions are powerful legal tools designed to ensure that parties involved in a legal dispute aren’t unfairly disadvantaged by the action or inaction of one party. Although the cost of an injunction is always a consideration, if the cost incurred to a business by the actions of another outweighs the cost of successfully obtaining an injunction, it may be the case that an injunction is the best way to go. A legal professional is the best person to speak to in order to discover if an injunction is going to be the best option for you.
We provide a complete legal service which includes professional advice and representation around a wide range of legal matters. As experienced legal professionals, we have expertise in all types and duration of injunction. Even if you’re not sure what type of injunction you’re looking for or whether it would be possible to achieve what you wish through the use of an injunction, we will be able to advise you of the current legal position and the possible choices you might have. Get in touch to book a FREE initial consultation or to speak with a member of our team.