Understanding Interim Injunctions



What is an Injunction?

An injunction is an order by a civil court commanding someone to carry out some specific act or, more usually, not to do some specific act. If the party disobeys the court, that is a civil contempt of court and the court can order them to be imprisoned, or fine them, or order their assets to be seized. 

In many cases where someone commits a legal wrong the court will simply order them to pay the other party a sum of money as compensation. But there are some circumstances where an award of money is not really adequate to do justice in the case and, in such cases, the court may issue an injunction - sometimes there is both an injunction and an award of money. An example where money would be inadequate would be a case where someone, with no right to do so, is constantly driving over someone else's land. There may be some wear and tear to the land for which the owner would like compensation but if the driver is allowed to continue driving over the land providing he pays compensation, that would not be justice. The main thing the land owner wants, and is entitled to, is an injunction to stop the trespass, by the driver, onto his land. 

What is an Interim Injunction?

Normally, before a court makes an order (such as an award of money or an injunction) there has to be a trial, and before there is a trial, the parties have to prepare for the trial, by completing a number of stages according to a court-ordered timetable. This whole process - known as a Claim - can take up to a year (or more in complex cases) and is designed to ensure that the court can reach the right decision with the available evidence, with each side having fair notice of what the other side is claiming and what evidence they will be relying on, so that each side has an opportunity to test the evidence and make their case to the court. So if there is a dispute as to whether someone has a "right of way" which entitles them to drive over someone else's land, it may take a year (say) from the issue of the Claim form until a judge, having carefully heard all the evidence, decides who wins - i.e. whether there is a right of way or not.

What happens during that year? - i.e. the year from the issue of the Claim form until a judge decides, after a trial, whether there is a right of way or not 

This is where interim injunctions come in. The owner of the land can ask the court for an injunction, ordering the driver not to drive on the land until the question of whether they are entitled to or not is decided in a year's time. This is called an interim injunction because it determines what is done in the interim - i.e. during the year before the court makes a final decision.

How does the court decide whether to grant an interim injunction?       

The judge, hearing an application for an interim injunction, will carefully consider whether to grant an injunction and on what terms. By definition, when the application is being considered, it cannot be known with certainty what the judge, a year later, at the trial, having heard all the evidence and argument over a day or more, will decide. So whatever decision the judge hearing the application for an interim injunction makes, there is a risk of some, at least temporary, injustice to at least one of the parties. If the judge grants an interim injunction ordering the driver not to drive on the land, that, with hindsight, may be unjust to the driver if, at trial a year later, the judge decides that the driver does have a right of way. On the other hand, if the judge refuses to grant an injunction and the driver continues to drive over the land for a year, that, with hindsight, may turn out be unjust to the land owner if, at trial a year later, the judge decides that there is no right of way.

What the judge, considering the application for an interim injunction will do, depends on the facts of the case (insofar as they can be established by witness statement evidence during the hearing of the application - which may last for only an hour or two). An injunction will often be granted to maintain the status quo - if the driver has only just started driving over the land the court may order him to stop until the matter is heard at trial. Conversely if he has been driving over the land for years, the court may judge that the right course is to allow him to do so for another year until the matter is decided at trial. But if the driver has been driving over the land for years relatively infrequently but is now driving over it much more frequently with much heavier vehicles, the balance of convenience may be different. The court does not necessarily have to choose between a complete ban and total liberty: the court might decide to grant an interim injunction limiting the frequency of usage and/or the size of vehicles. 

An important factor is whether, if an interim injunction turns out (in the light of the court's decision at the eventual trial) to have unnecessarily restricted a party, that party could be adequately compensated by an award of damages (i.e. money). Suppose that the land being driven over is the grounds of a private house, quite close to the house itself and causing a considerable nuisance to the householder. Suppose that the drivers, driving over the land, are employees of a business (which claims to have a right of way) making deliveries to that business's premises, and that there is another route which they could use, along a public road, which would involve a two mile detour. If an injunction is not granted (and it turns out at trial that there is no right of way - or at least not a right of way for the purposes for which it is being used) the householder will have to put up with the nuisance for a year, and that is not something which can easily be measured in terms of monetary compensation. On the other hand if an injunction is granted (and it turns out at trial that there is a right of way) it should be fairly easy for the business to calculate its loss in monetary terms - e.g. the extra cost of overtime payments to drivers, and extra fuel and vehicle wear and tear, incurred over the year by having to use the two mile detour. So the court might decide that the fairest thing to do is to grant an interim injunction as the business can be adequately compensated in money if it turns out there was a right of way.

What is an "undertaking in damages"?                             

Normally the party applying for an interim injunction has to give to the court an "undertaking in damages" - i.e. the applying party has to agree that, if their application for an interim injunction is successful, and if the court later finds that the interim injunction has caused loss to the other party for which they should be compensated, the party granted the interim injunction will comply with any order the court may then make (e.g. an order to pay compensation to the other party).

The applying party normally also has to undertake to issue a Claim form - to start the court process which will lead to a trial - if a Claim form has not already been issued.

Costs 

The normal practice, for applications generally, is that the party which "loses" the application is ordered to pay the other party's costs of the application (i.e. the other party's legal costs of having the application papers drafted and being represented at the application hearing). However for applications for an interim injunction there is the added factor that a party which "loses" the application for an interim injunction may yet be vindicated at the later trial and be granted a permanent injunction then. Often the court, hearing the application, will make an order of "costs in the case" which means that whoever (usually the winner of the overall case) is eventually awarded the costs of the case as a whole (after the trial) will also get their costs of the application. However there may be some applications where the court takes the view that, whatever the final outcome at trial may be, the application for an interim injunction was unnecessary or frivolous and in such cases the court may order the party which loses the application to pay the other side's costs of the application. In such circumstances the court may either order the party which was unsuccessful on the application to pay the other party's costs of the application "in any event" or the court may order that the unsuccessful party (say, the claimant) will not recover their costs of the application in any event but will only have to pay the other party's (defendant's) costs of the application if the other party are successful at trial (such an order would be expressed as "defendant's costs in the case").


Consent orders

It is quite common, once the application papers have been served, for the parties, having taken advice from their barristers, to agree the outcome of the application. For example, the parties may not agree whether there is a right of way but they might be willing to agree that, pending the decision on that question at the eventual trial, limited use of the alleged right of way can continue. Because the outcome of an application for an interim injunction - including what order for costs might be made - is uncertain the parties will often prefer to reach some temporary compromise (without compromising their case at the eventual trial) rather than proceed with a contested application hearing. If the parties agree then the court will normally (though, strictly, it does not have to) make an order in the form agreed by the parties. Usually the parties as part of such a consent order will agree that the costs of the application should be "reserved". This means that the court defers making a decision on who should pay the costs of the application until some later opportunity when there is time at some further hearing (e.g. at the trial).  

Without Notice applications for interim injunctions          

The normal rule is that the party applying for an interim injunction has to "serve" (i.e. deliver) the application papers giving the other party at least 3 clear days notice of the date the application is to be heard. However if the application is very urgent (e.g. if a business has been brought to a complete standstill or someone is threatening to demolish a building in two days time) it is possible to apply for an interim injunction without giving 3 clear days notice to the other party. If such a Without Notice application is successful, the court will grant an injunction for a very limited period until a further hearing is arranged for which the other side will be given 3 clear days notice. At that further hearing the interim injunction will then be reconsidered. Where there is a Without Notice application the party applying must give as much "informal" notice of the application hearing as possible to the other party (e.g. by email or telephone) except in cases where secrecy is essential. An example of a case where secrecy is essential is an Without Notice application for a Freezing Injunction to prevent a party moving money overseas - it is essential that the party does not know of the initial Without Notice application in advance otherwise they may move money overseas, outside the jurisdiction of the court, before the injunction order, requiring them not to do so, has been made. Once they have been served with the initial injunction order (granted at the Without Notice hearing) they then have the opportunity at the next hearing to argue, if they wish to do so, that the injunction should not be continued.

Disclaimer

The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice 

This page was lasted updated in December 2014. Disclaimer