interim injunctions

The general rule in English legal proceedings is that injunctions are made by courts at the end of legal proceedings, that is to say, after the final hearing. The final hearing in litigation, otherwise known as the trial, is the occasion before the court where each of the parties present their respective cases after having conducted the interim processes of disclosure, filing and service of evidence and any other pre-trial steps.

Applications for interim injunctions are an exception to this general rule, whereby the claimant applies for an injunction for the purposes of preserving evidence or assets at the very outset of the proceedings. Interim injunctions are applied for at commencement of legal proceedings, without a full examination by the court of the facts said to justify a final injunction.

Interim applications are particularly useful in cases where evidence is easily destroyed by a defendant which would prejudice a fair trial, such as in cases where the documentation to be relied upon is likely to be electronic evidence.

Purpose

The advantages of obtaining an interim injunction at the commencement of proceedings include:

1. the fact that the defendant usually does not know an application for court orders is being made; and
2. the first the defendant hears about the application is when it receives the order to do something to correct his allegedly wrongful actions.

Accordingly, the purpose of applying for interim injunctions “without notice” is that notice would potentially allow the defendant to take action to avoid the effect of the order prior to it being made.

Applications for Interim Injunctions

Applications for interim injunctions requires preparation of an application notice, draft order, and evidence in support of the application to show the Court that in all the circumstances, the court would be justified making the award of the interim injunction. In addition this, the application for the injunction will be required to prepare:

1. the claim form to commence proceedings; and
2. particulars of claim which formally set out the facts that give rise to the cause of action and the claim for relief, which would in most cases include a claim for damages and a final injunction.

Procedure

After the application is issued and prior to service of the Court documents, the applicant appears before the Court to obtain the interim injunction.

This first hearing is made "in secret", without notice to the defendant where notice of the hearing to the defendant in the ordinary way would defeat the purpose of obtaining the order.

At this first hearing:

1. assuming that the Court makes the order, the Court will ordinarily fix a date within the next 14 days to allow the defendant to the application an opportunity to appear before the Court to contest the order if it so wishes to do so or apply for a variation of the order; and
2. the applicant will prepare the order containing the interim injunction, arrange for it to be sealed by the Court and serve it.

After the second hearing, the legal proceedings continue in the ordinary way – the respondent to the application will be required to file its defence or otherwise risk default judgment being entered. Thereafter, the parties will complete their respective allocation questionnaires as part of the case management functions of the court, and move on to disclosure and preparation of evidence. While the interim injunction remains in force, the respondent to the application may apply for it to be set aside.

Enforcement of Injunctions

Interim injunctions are enforceable by an application for civil contempt of court if the defendant fails to comply with the terms of the order of the court. The orders made by the court are designed to:

1. avoid malicious and/or spiteful damage to assets covered by the interim injunction that might otherwise take place during the usual notice period;
2. stop the respondent tampering with evidence; and
3. may require the respondent to deliver up passwords, source code and other electronic assets as may be reasonably justified in the case at hand.

Interim injunctions require prompt action by claimants. Courts will not allow claimants to sit on their hands and approach the court for relief well after came into information which would justify making an application. Such applications for interim relief in England must be made as soon as "practicable". This is not to say that the claim to be made is extinguished – it simply means that the court is less likely to make an award for interim relief at the outset of the legal proceedings.

Concluding Remarks

Interim Injunctions provide a powerful tool in appropriate circumstances for litigants to preserve evidence and/or assets pending the final hearing. Courts maintain a discretion to make such orders, and will only do so if the balance of convenience favours the claimant.

In hearings where the defendant is not represented before the Court on the initial application, the claimant is required to include evidence and materials to provide the court full and frank disclosure of all matters within the knowledge of the applicant that may affect the exercise of the Court’s discretion to make the award and inform of the Court of grounds upon which the defendant may be entitled to defend itself.