Claimant’s Guide to Injunctive Relief

Injunction applications, by their very nature, have to be dealt with very swiftly and require specialist knowledge of injunction law and court procedures. 

The court procedure is set out in the Civil Procedure Rules (CPR), which are the rules which govern the conduct of all litigation in England and Wales. Normally, the initial documents which need to be filed with the Court to commence injunction proceedings are:

• A Claim Form and Particulars of Claim, which will set out the basis of the underlying claim;
• An Application Notice and draft Order setting out the injunctive relief applied for; and
• A witness statement or affidavit which will contain the evidence in support of the injunction application.

When determining whether to grant interim relief such as an injunction, the Court will consider whether it is "just and convenient" for an injunction to be granted. Generally speaking, what this means is:

• Injunctions should, generally, only be granted where this is an underlying cause of action;
• Relief is sought before the Court has adjudicated on the parties' substantive rights;
• The Court will not conduct mini-trials of conflicting evidence;
• The Court will attempt to maintain a fair balance between the rights of the parties pending trial;
• Injunctions are discretionary, and all the facts of the case must be considered; and
• There are no fixed rules as to when an interim injunction will be granted, and the remedy must be kept flexible.

In addition, the House of Lords case of American Cyanamid Co (No 1) v Ethicon Ltd established an important test which is routinely applied by the Courts. The starting point is whether there is a serious question to be tried (i.e. is there an issue for which there is some supporting material and an outcome which is uncertain). If so, the Court must then consider the "balance of convenience". 

The balance of convenience test is considered in three stages:

1. Will damages be an adequate remedy for the claimant if they succeed at trial? If so, injunctive relief is not normally granted.
2. If damages would not be an adequate remedy for the claimant, will the claimant's cross-undertaking in damages provide adequate protection for the defendant if it is discovered at the final trial that the Court had wrongly granted interim relief? If not, that points against the grant of injunctive relief.
3. If there is doubt as to the adequacy of damages when applying the above tests, the Court will consider the balance of convenience more generally and the particular factual circumstances. Where such factors remain evenly balanced, the Court will tend to favour preserving the status quo. 

Correspondence may elicit admissions, concessions or even a resolution of the dispute. Conversely, entering into correspondence will put the intended defendant on notice of possible proceedings and of the possibility of an application for injunctive relief, which can lead to delay and avoidance tactics. It is common for defendants who are seeking to resist the imposition of injunctive relief to contend:

• If there has been no or minimal correspondence prior to the injunction application being made, that the application for injunctive relief is inappropriate or premature; or
• If there has been lengthy correspondence prior to the application for injunctive relief being made, that the applicant has unduly delayed in bringing the application.

The Court will look at the situation realistically. The extent to which it is appropriate to engage in pre-action correspondence prior to applying for injunctive relief will depend on the nature of the case.

Notwithstanding this, the Courts have consistently warned against trigger-happy without notice applications. Without notice, applications are only likely to be granted in very limited circumstances such as:

• Where giving notice would enable the defendant to take steps to defeat the purpose of the injunction, such as in the case of many search or freezing orders; and/or
• Where there is some exceptional urgency, which means there is literally no time to give notice.

The cost of applying for obtaining an injunction will depend on the type of injunction being sought and how the defendant responds to the injunction application or the threat of an injunction application being made. 

If it is possible to resolve the issue(s) through pre-action correspondence without a Court application being made, the costs will be lower than if an urgent injunction application that requires lots of evidence has to be made. 

Costs can escalate very quickly if Court proceedings are issued, particularly as it is normal for a barrister to be instructed in relation to any Court application. It is not uncommon for it to cost tens of thousands of pounds to draft, issue and serve injunction proceedings and attend the first Court hearing. 

Sometimes though, injunctive proceedings are the only way in which a claimant can protect their position, minimise the potential damage caused and bring the dispute to a timely and satisfactory conclusion. 

It is always our advice to clients that, where possible, a notice of injunction proceedings and/or a Court order granting the claimant injunctive relief are served personally on the defendant. This requires instructing a process server to hand deliver the relevant paperwork to the defendant. This is, so it is brought to the defendant's intention that injunction proceedings have been issued against them and/or that a court has ordered them to do something or refrain from doing something. 

By their very nature, injunction applications need to be made quickly. One factor the Court can consider when deciding whether to grant injunctive relief is whether a claimant has unduly delayed in making the injunction application. The Courts in England and Wales set time aside to specifically deal with urgent injunction applications. It is not uncommon for us to receive instructions on a new injunction application and for it to be heard by the Court for the first time within a week. 

Where an "on notice" injunction application is made, i.e. the defendant is aware of the application, the Court rules say that the application should be served at least three clear days before the hearing to give the defendant time to respond to the application and prepare for the first hearing. This timescale can be shortened, though with the permission of the Court, and, as mentioned above, some types of injunction applications are made without the defendant being aware of them. 

Where an injunction application is made without the defendant's knowledge, the first hearing (which only the claimant and its legal representatives will attend) is likely to occur within a week or so of the court's application. If the Court grants injunctive relief at that first hearing, the Court's order is served on the defendant, and there will then be a second hearing, known as a return hearing, which normally takes place a week later.