written exercise - q4 (specific performance and injunctions) Flashcards
case law for interim mand
- Considerations for court for mandatory (Nottingham Building Society v Euro Dynamics)
o Least risk of injustice if found to be wrong
o Greater risk of injustice where party is required to take a positive step
o Would the plaintiff be able to establish this right at trial
o Appropriate to grant where risk of injustice if injunction is refused sufficiently outweights the risk of injustice if granted
changes to cpr 25
Complete Rewrite of CPR 25:
The Civil Procedure (Amendment) Rules 2025, SI 2025/106, introduced a revised version of CPR 25, intended to give effect to the CPRC’s proposals regarding CPR 25.
Revocation of PD 25A and PD 25B (use of experts and assessors in family proceedings):
The supplementary Practice Directions 25A and 25B were revoked, with key provisions incorporated into the restructured CPR 25.
New Model Orders:
Three revised model orders were introduced and published: Model Search and Imaging Order; Model Order for Propriety and Freezing Injunctions; and Model Order for a Freezing Injunction.
Streamlining and Simplification:
The reforms aimed to streamline and simplify the rules and Practice Directions, with the new Part 25 restructured into a more logical order.
Associated Changes:
The changes also included amendments to Part 4 (Court Forms), Part 52 (appeals), and Part 74 (Enforcement of Judgments in Different Jurisdictions).
179th PD Update:
The 179th Practice Direction (PD) update, which came into force on 6 April 2025, supports the Civil Procedure (Amendment) Rules 2025.
Civil Procedure (Amendment) Rules 2025:
These rules, SI 2025/106, came into force on 6 April 2025 and contain the amendments to CPR 25 and other related parts.
examples of interim applications
During the course of litigation, a party can apply to court to ask them to make an order (CPR 23.1). These applications are made after the issue of proceedings and before the trial. The order can be for a variety of reasons, for instance it may be to:
Application to set aside default judgment (part 13)
Application for summary judgment (part 24)
Application for an interim injunction (part 25.1)
Application for an interim payment on account of damages (part 25.6)
process for interim applications
notify your opponent (i.e. serve notice) that you intend to make an application unless exception in PD 23A para 3 applies – freezing injunction or search order). 3 days before hearing
File and serve
An application notice (N244) to the court (CPR 23.3) where the claim will be issued/was started/has been sent/where trial is to take place (CPR23.2)
An additional copy of notice for each party (CPR 23.4. 23.7)
A copy for the court
Should state what the order is seeking and why (CPR 23.6)
Should also include the title for the claim; the reference number of the claim; the full name of the applicant; address of service; and request for a hearing or request that application be dealt with at hearing (PD 23A para 2.1)
Supporting Evidence – usually in the form of a witness statement.
Evidence will often be helpful for court to be satisfied by evidence of the facts (PD 23A, para 9.1)
Need to include important points to be brought to the court’s attention; should be divided into numbered paragraphs; need to be clear about which contents derive from maker’s knowledge and which derive from third parties
Attached statement of truth – if the applicant wishes to rely on the matters set out in the AN as evidence at a hearing, it must be verified by a statement of truth on the second page of N244
Draft order sought, in all but the most simple application: PD 23A, para 12.1
Requisite Fee
The N244 must be served “as soon as practicable after it is filed” and in any event at least three clear days before the hearing (CPR 23.7(1)(b); PD 23A para 4.1)
costs order for interim app
costs order for interim app will depend on outcome
C’s costs / D’s costs - you pay costs
costs in case - whoever loses at trial will pay costs
C’s costs in case - if the claimant wins, the defendant will pay claimant’s costs. If the claimant loses then each party will bear their own costs
no order as to costs - each party pays for own
what is an injunction and types
An injunction is remedy awarded in a court order, requiring a party to do a specified act (a mandatory injunction) or the refrain from doing an act (a prohibitory injunction). They can be granted as an interim or final remedy. This page links to resources on interim and final injunctions and on freezing injunctions which restrict dealings with assets.
Prohibitory: prevents D from doing something
Mandatory: D has to do something
Have to specify exactly what D has to do and the time within which he must do it
Less frequent than prohibitory
Awarded if C will suffer serious harm if an injunction is not granted
Court will not require D to incur expenditure which is disproportionate to the harm the C will otherwise suffer
Wrotham Park Estate Co – C sought injunction ordering D to knock down houses built in breach of an RC. Court said this was a waste
Pugh v Howells – D built extension that interfered with C’s right to light (C warned D re. injunction and D’s surveyor advised against it). Court ordered demolishment
Quia timet: require D to take steps to prevent harm from occurring
Applicable in the following cases (as per Redland Bricks Ltd):
(a) where the respondent has as yet done no hurt to the applicant but is threatening and intending (as the applicant alleges) to do works which will cause irreparable harm to him or his property if carried to completion;
(b) where the applicant has been fully recompensed, both at law and in equity, for the damage he has suffered, but where he alleges that the earlier action of the respondent may lead to future causes of action (eg where the respondent has withdrawn support from his neighbour’s land, or where he has so acted in depositing his soil from his mining operation as to constitute a menace to the applicant’s land).
when will an injunction be granted
Under s 37 of the Senior Courts Act 1981 an injunction can be granted ‘in all cases in which it appears to the court to be just and convenient to do so’. It may be granted either unconditionally or on such terms and conditions as the court thinks fit.
Interim Prohibitory Injunctions Only - Courts will exercise their discretion by reference to the American Cyanamid Guidelines: American Cyanamid Co v Ethicon Ltd [1975] AC 396. – SEE BELOW
general principles for injunction
- the claimant must have locus standi;
C must have a substantive cause of action in English law to obtain an injunction - they are a discretionary remedy; and
need to comply with the usual equitable maxims e.g. delay can be a bar to awarding
he who comes to equity must come with clean hands – Hubbard v Vosper
D’s behaviour and motivation is a factor – if they have been harming the C out of malice, court may be persuaded to grant an injunction in a borderline case
acquiescence
If the claimant knew that the defendant was infringing his rights and failed to object, he may be refused an injunction because he led the defendant to believe that he did not object to the defendant’s behaviour (Sayers v Collyer)
Delay does not of itself amount to acquiescence – claim for injunction only fails if C made D think they had not done anything wrong, which led D to act to their detriment (Jones v Stones; Church of Scientology of California) - damages must not be an adequate remedy
under s50 Senior Courts Act 1981, the court can award damages instead of/in addition to an injunction where:
there is serious harm which likely to continue; or
the harm is irreparable or cannot be quantified in financial terms; or
the D does not have the means to pay damages
when can interim injunction be granted
Interim injunctions can be sought at any time before proceedings are started and after judgment has been given (CPR 25.2(1)). but only before if matter is urgent or it is in interested in judgment
If an order is granted before proceedings have been commenced, ordinarily the order will only be granted if C undertakes to issue the Claim Form immediately (CPR 25.2(3)).
with v without notice choice
Normally it is appropriate to make an application with notice to enable both parties to make representations at the hearing.
However under CPR 25.3(1)/PD 25A para 4 the court may grant an injunction without notice if there are good reasons for doing so. This will be:
That the case is so urgent that there is not time to give notice.
C reasonably fears that if D had advanced notice it would try and do the act which would cause the claimant harm, pre-empting the injunction.
Must also show that they have strong enough case to justify court not hearing D’s case
process for with notice
issue claim form
n244
usually WS or anything with statement of truth
draft order
- The claimant’s cross-undertaking in damages
- A penal notice to be enforceable against D via contempt of court proceedings
- A statement that the injunction lasts until trial or further order
- No need to set return date as application is on notice and so D can attend the hearing and make representations against the grant of the injunction
serve it all
D can serve evidence in response
hearing takes place
if injunction is granted, it will last until trial or fruther order (no return date as with without notice apps)
- serve injunctions (which must contain undertaking as to damages and a penal notice - Puts D on notice that D will be in contempt of court if they breach the injunction.)
cannot enforce injunction without penal notice
Process for without notice
issue claim form - If the application is so urgent it isn’t possible to issue a claim form and application notice, the court still has the power to order an injunction.
- However, per PD25A, para 4.4, the applicant must usually undertake to the court to issue a claim form immediately or alternatively the court will direct the applicant to commence the claim.
issue n244, file evidence and draft order
hearing takes place in absence of D
- C must give full and frank disclosure - any points D would have made if they had been there
serve injunction on D if order granted - can be done before issuign CF if urgent as order not binding until served
- need to also give them full notes of the hearing
- can serve before return date
only valid until return date - there is then further hearing. D can file evidence / make submissions
court will discharge order or make injunc continue till trial
cross undertaking
When interim injunction is granted, court requires C to give an undertaking that if, at a final trial, D wins and the court finds that the interim injunction should not have been ordered, C will pay D damages to compensate any loss the defendant suffers as a result of the injunction. (PD 25A para 5.1)
undertaking in place of injunction
A defendant may give an undertaking to the court in place of an injunction. This may be because:
D does not want to incur the time and costs of a contested hearing.
D thinks he’s likely to lose the application so offers an undertaking to secure a better outcome than what the court might order.
Helps D to come across as reasonable.
They do not want to disclose arguments (as there will be no full hearing) but they will need to comply with pre-trial directions
C should consider whether undertaking is worse offer
what happens if R does not comply with injunction
Under Part 81 CPR, main 2 methods:
sequestration (seizure of property) – for company
sequestration is usually used where the respondent is a limited company or an unincorporated association like a trade union (although it may also be used against the property of any director or officer of such an organisation if he was party to the breach).
If the court grants leave for a writ of sequestration to be issued, it appoints four commissioners to handle the respondent’s finances and to extract a financial penalty for breaking the injunction.
Companies may be vicariously liable for the acts of their employees (Re Supply of Ready Mixed Concrete (No 2))
committal to prison – for individual
Individual respondents can be committed to prison for contempt of court.
This penalty is also used against the individual officers of a defendant company who were responsible for the breach
pre requirements of freezing injunctions
english court must have jurisdiction
applicant will usually have a cause of action (counterclaim is sufficient) - the applicant must provide an undertaking to the court to pay any damages to the other party if it is later shown that the order should not have been granted (see below).
requirements for freezing injunction
- good arguable case - court confirmed recently in Don Santos that “serious issue to be tried” needs to exist as for the jurisdictional gateways
- D has property in the jurisdiction
- That there is a real risk that if no order is made the defendant will dispose of his property in order to frustrate the enforcement of any judgment.
- just and convenient
freezing order requirements in more detail
good arguable case - court confirmed recently in Don Santos that “serious issue to be tried” needs to exist as for the jurisdictional gateways
A “good arguable case” does not require the applicant to prove that its arguments in the underlying proceedings will likely succeed. Rather, the applicant must show that its claim has a “plausible evidential basis” - argument in case law as to whether good arguable case relates to underlying action (fourie) or the application (the niedersachsen).
Applications will be made without notice, otherwise point of the application would be undermined.
Accordingly C is obliged to make full and frank disclosure of all relevant facts for and against his case (otherwise D can apply to have order set aside for non-disclosure and will also seek damages and costs)
Disclosure obligations extend to facts discovered after making of order
D has property within the jurisdiction and
In the case of foreign defendants the courts will take account of the fact that, if a defendant is able to remove his property from the jurisdiction, it may be very difficult for the claimant to enforce a later judgment
any type of asset can be frozen e.g. bank accounts, shares and intangible such as goodwill, crypto/NFTs
The freezing order can be extended to assets in which the applicant has a proprietary interest or trust claim. For instance, the order may prohibit the disposal or diminution of value of assets obtained from the applicant.
see below on WFO
That there is a real risk that if no order is made the defendant will dispose of his property in order to frustrate the enforcement of any judgment.
C must have clear evidence that the defendant would dispose of his property if the injunction is not granted.
Usually needs evidence that D is a ‘debt dodger’ and removal of assets will be done with a corrupt or dishonest purpose.
E.g. evidence that D has been dishonest with other creditors.
Lord Donaldson MR held that the test for risk of dissipation is not subjective but objective: it does not depend on the intent of the respondent or his design but on the evidence that there is a real risk of dissipation of assets
- just and convenient
The Court in Re G [2022] considered precisely what is required to meet the “just and convenient” test. The two requirements are as follows: - that the person protected by the injunction has an interest that merits protection; and
- that there is a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something.
other elements of freezing injunction (short)
full and frank disclosure
undertaking in damages and contempt of court
effect of delay
penal notice
other elemtns of freezing injunction (longer)
continuing duty of full and frank disclosure i.e. facts for and against. requires good faith e.g. identifying any potential defences.
The applicant must disclose facts that it knows and which it would have known had adequate enquiries been made. The extent of the enquires depends on the facts of the case (Brink’s Mat Ltd v Elcombe [1988] 3 All ER 188 (“Brink’s Mat”)).
Note that without prejudice communications are generally excluded from full and frank disclosure, but the duty may require disclosure if necessary to prevent misleading the court
if not full and frank disclosure, penalise in costs; set aside original injunction with replacement or no replacement e.g. in Irish Response, a freezing order (and corresponding search order) was discharged due to the applicant’s failure to disclose two material letters.
applicant’s undertaking in damages and contempt of court
· When a freezing order is granted, the order must contain the following undertakings as per PD25A para 5.1:
o “(1) subject to paragraph 5.3, an undertaking by the applicant to the court to pay any damages which the respondent sustains which the court considers the applicant should pay.
o (2) if made without notice to any other party, an undertaking by the applicant to the court to serve on the respondent the application notice, evidence in support and any order made as soon as practicable,
o (3) if made without notice to any other party, a return date for a further hearing at which the other party can be present,
o (4) if made before filing the application notice, an undertaking to file and pay the appropriate fee on the same or next working day, and
o (5) if made before issue of a claim form–
o (a) an undertaking to issue and pay the appropriate fee on the same or next working day, or
o (b) directions for the commencement of the claim”.
· Undertakings are required as they protect the respondent in a scenario where the court finds that the injunction should not have been granted.
The most important undertaking is arguably the cross-undertaking in damages (PD25A para 5.1(a)), as it entitles the respondent to payment in the event that the respondent suffers damage as a result of an injunction that was incorrectly granted. In other words, if the respondent subsequently wins the underlying case/establishes that the injunction should not have been granted, the respondent can enforce the applicant’s undertaking and the applicant will have to provide compensation.
undertakings contained in order - contempt of court if dont comply
effect of delay - adverse consequences for A as risk of R dissipating in that time
penal notice - cannot enforce FO without penal notice. · The injunction should also contain a penal notice, which is defined in CPR 81.2 as a “prominent notice on the front of an order warning that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court’s order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law”.
WFO
A court will make a worldwide freezing order in exceptional cases (Derby & Co Ltd v Weldon [1990] Ch 48) as they can have a significant impact on respondents who own property in different jurisdictions. There must therefore be:
o A large amount of money involved [RR1] (in Santina Limited v Rare Art (London) Ltd [2023] EWHC 807 (Ch) “Mr Justice Edwin Johnson granted a worldwide freezing order, which froze the applicant’s assets up to the value of £200,000 to cover the respondent’s unpaid costs of its application for security for costs and its costs of the action.”[1];
o Insufficient property in the jurisdiction to meet the amount sought; and
o A high risk of property being concealed.
chabra
n certain circumstances, the courts have jurisdiction to grant freezing orders against not only parties to a cause of action but also against a third party against whom the applicant assets no cause of action.
In Chabra, a freezing order was granted against a third-party company where there was a good arguable case that the assets apparently vested in the name of the company were in fact beneficially the property of Mr Chabra
o Therefore, those assets, or at least some of them, might be able to satisfy the applicant’s claims against Mr Chabra should the applicant be successful at trial.
cardile considered q as to whether it was necessary for the respondent to have a beneficial interest in the assets held by the third party. o The court determined that it was not necessary for the respondent to have a beneficial interest in the assets held by the third party for a freezing order to be obtained over those assets.
process for FO
court will apply the balance of convenience test - damage against R v benefit to A
usually without notice supported by affidavit evidence and draft order - witness statement is not enough - made to the High Court
n244 form
cpr 25 applies as interim injunction
if without notice, there is return date for with notice hearing
grounds for setting aside/varying FO
Usually on the basis that C did not disclose all material facts and that on the basis of all of the information, one of the grounds is not made out.
Applications usually dealt with at trial of C’s action (but often in case of FI, D has to suffer consequences of FI until then (Ali & Fahd Shobokshi Group Ltd)
if FI is set aside, judge should consider if it is appropriate to assess damages at once rather than wait till trial (Practice Direction (Mareva Injunctions and Anton Piller Order)
C will normally have to pay costs and damages for loss caused by the injunction; implication is C did not properly investigate before bringing the application.
other reasons = procedural irregularities, property affected by injunction does not belong to D or inordinate delay by C in pursuing claim
