Interim Injunctions (Syllabus 17)

Question 1

Where is the power to order an interim injunction contained?

Answer 1

CPR r.25.1

Question 2

What is an injunction?

Answer 2

a court order prohibiting a person from doing something or requiring a person to do something.

Question 3

What should the claim form contain?

Answer 3

the claim form must specify the remedy sought and therefore should include any claim for an injunction as a final order.

Question 4

If a claimant cannot define the relief sought with a sufficient degree of precision what will happen?

Answer 4

No injunction will be granted.

Question 5

What statute gives the courts jurisdiction to grant injunctions?

Answer 5

s. 37 Senior Courts Act states that the High Court may by order, whether interlocutory or final, grant an injunction in all cases in which it appears to the court to be just and convenient to do so.
s. 38 County Courts Act provides that the court may make any order which could be made in the High Court if the proceedings were in the High Court.

Question 6

What must a litigant who ceases to be bound bu their undertaking apply for?

Answer 6

they should apply for release from it or discharge of it and may accompany the application with an offer of undertaking in different terms.

Question 7

Can a litigant who has given an undertaking to obtain an injunction entitled to pursue an appeal agains that undertaking?

Answer 7

Not usually, unless there are exceptional circumstances.

Question 8

What are the two possible routes to dispute the contents of an undertaking before an appeal court?

Answer 8

(1) to decline to give the undertaking, accepting that the injunction will be refused; or
(2) to refuse to give the undertaking, but to invite the judge to make an order in equivalent terms or to amen the injunction conditional on fortification.

Question 9

What is an undertaking?

Answer 9

a promise which a litigant volunteers to the court, the court has no power to vary the terms of a voluntary promise.

Question 10

When might an order for an interim remedy be made?

Answer 10

at any time including-

(1) before proceedings are started; and
(2) after judgment has been given

Question 11

How can a party apply for an interim remedy?

Answer 11

(1) the court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) an application for an interim remedy must be supported by evidence unless the court orders otherwise.

Question 12

What is the test in American Cyanamid?

Answer 12

(1) is there a serious question to be tried; if yes, then two other questions arise
(2) would damages be an adequate remedy for a party injured bu the court’s grant of, or its failure to grant, an injunction?
(3) if not, where does the balance of convenience lie?

Question 13

What is the American Cyanamid test for?

Answer 13

the procedure to be adopted bu the court in hearing an application for an interlocutory injunction

Question 14

What is the meaning of whether there is a serious question to be tried?

Answer 14

Is there a serious issue that might be raised a trial, so is a trial likely to take place.

Question 15

Can the court grant interim relief pending an appeal?

Answer 15

Yes the court has a jurisdiction to grant interim protection by interim injunction to a party who has been unsuccessful at trial pending an appeal.

Question 16

How should the balance of convenience be determined?

Answer 16

(1) the court should first consider whether if the claimant succeeds at trial, they would be adequately compensated by damages for any loss caused bu the refusal to grant an interim injunction.
(2) if damages would not be an adequate remedy, the court should consider whether if the injunction were granted, the defendant would be adequately compensated under the claimant’s undertaking to damages.
(3) it is where there is doubt as to the adequacy of he respective remedies in damages that the question of balance of convenience arises.
(4) where the factors seem balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo.

Question 17

What is the balance of convenience also described as?

Answer 17

the balance of risk of doing injustice

Question 18

Where factors seem to be evenly balanced, what is usually the solution?

Answer 18

to preserve the status quo

Question 19

When should the relative strength of each parties case be considered in determining the balance of convenience?

Answer 19

As an absolute last resort.

Question 20

If the grant or refusal of an interlocutory injunction is likely to dispose of the issue what must the court consider?

Answer 20

the likelihood of the claimant succeeding at trial.

Question 21

What is the effect of delay on trial?

Answer 21

in a given case, the question whether or not the grant or refusal of an interlocutory injunction will in effect dispose of the action finally may be affected by the length of delay to trial.

Question 22

Can the guidelines in American Cyanamid be varied?

Answer 22

Yes, in certain circumstances.

Question 23

What is a mandatory injunction?

Answer 23

an injunction that directs that a positive act should be done to repair some mission or to restore the prior position by undoing some wrongful act.

Question 24

What is the test laid out in Nottingham Building Society?

Answer 24

(1) the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be wrong
(2) in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step may carry a greater risk of injustice.
(3) it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the claimant will be able to establish this right at a trial.
(4) but, even where they are unable to feel any high degree of assurance that the claimant will establish their rich, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage.

Question 25

Can the court order a party to give an undertaking in damages?

Answer 25

No, it is something that an applicant must be willing to do of their own accord.

Question 26

Can there be terms attached to the granting of an interlocutory injunction?

Answer 26

Yes they can be granted either unconditionally or conditionally.

Question 27

Who is a cross-undertaking given to?

Answer 27

not from applicant to respondent; but from applicant to the court.

Question 28

What should the undertaking in damages extend to?

Answer 28

it extends to compensating losses suffered bu the defendant restrained by the order.

Question 29

What will happen if an applicant is unable to offer a credible undertaking?

Answer 29

The court will not deny a person who is entitled to an injunction one if they are legally aided and of limited means