About Interim Injunctions
What is an Injunction?
An injunction is an order by a civil court requiring 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 they pay 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 their 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 full hearing (trial), and before the final hearing the parties have to prepare by completing a number of stages according to a court-ordered timetable. This whole process 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 the stage is reached where a judge, having carefully heard all the evidence, decides who wins - i.e. whether there is a right of way or not. In practice, in a right of way dispute, it is normally a specialist tribunal, rather than a court, which ends up determining whether there is a right of way or not, with any court action suspended (stayed) pending the conclusion of the tribunal process, but the principle is the same: there is a long process taking a year or so to finally decide the claim.
What happens during that year? - i.e. the year from the start of the formal claim until a civil court or tribunal 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 quickly can you get an interim injunction?
The normal procedure involves delivering formal legal documents to your opponent three clear business days before the date of the injunction hearing, so one week from when you first consult a barrister to when your application for an interim injunction is heard by a judge would be normal. However is cases of great urgency a hearing can be arranged for the next working day. In matters of extreme urgency an injunction can even be obtained in a matter of hours at any time of day or night.
If the injunction is granted at a hearing of which the other side was not given three clear days notice then there will actually be two hearings. At the first (urgent) hearing the judge decides whether to grant an injunction for a limited period until a second hearing (the return date) can be arranged. Then at the second hearing (of which the other side will be given three clear business days notice) the judge will hear arguments from both sides as to whether the interim injunction should be continued up to the final hearing.
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 final hearing, having heard all the evidence and argument over a day or a number of days, 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 the final hearing a year later, the judge decides that the driver does have a right of way after all. 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 the final hearing a year later, the judge decides that there is in fact 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 interim 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 finally decided. Conversely if they have 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 can be finally decided. 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 final hearing) 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 the final hearing that it is determined 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 the final hearing 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 normal practice, for interim applications generally - at least those which require a hearing - is that the party which "loses" the interim application is ordered to pay the other party's costs of the interim application (i.e. the other party's legal costs of having the interim application papers drafted and being represented at the interim 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 final hearing and be granted a permanent injunction then. Often the court hearing the application for an interim injunction 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 final hearing) will get their costs of the interim application included within that. However there may be some interim injunction applications where the court takes the view that, whatever the final outcome 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 for an interim injunction to pay the other side's costs of that interim application within 14 days without waiting to see the result of the final hearing often many months in the future. Sometimes, instead of the court ordering the party which was unsuccessful on the interim application to pay the other party's costs of the interim application "in any event", the court may order that the unsuccessful party (say, the applicant) will not recover their costs of the interim application in any event but will only have to pay the other party's (respondent's) costs of the interim application if the other party are eventually successful at the final hearing (such an order would be expressed as "respondent's costs in the case"). Or the court may simply "reserve" the costs of the interim application which means that the court defers the making of a decision on who should pay the costs of the application for an interim injunction until some convenient later opportunity such as at the final hearing.
The decision to apply for an interim injunction involves risk because, not only is there the possibility of an interim injunction not being granted and the applicant being ordered to pay the costs of the interim application itself but, in addition, applying for an interim injunction necessarily means also starting a formal claim which is a process which, once started, it is difficult to get out of (because you can't withdraw before the final hearing unless you are prepared to pay the other side's costs, unless the other side agrees otherwise). Although the court, when considering whether or not to grant an interim injunction, does not consider who is likely to win at the eventual final hearing (the court is only concerned with whether there is a "serious question to be tried") from the perspective of the person applying it is highly desirable that, if at all possible, they obtain an Opinion from a barrister on whether they are likely to win in the end (at the final hearing) before they take the step of committing themselves to the legal process.
It sometimes happens, once the application papers have been served, that the parties, having taken advice from their barristers, can agree the outcome of the application for an interim injunction. 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 hearing on the question of whether an interim injunction should be granted. 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 incurred thus far on the application for an interim injunction should be "reserved".
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 June 2023. Disclaimer