Civil (11)

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What is an injunction?: An order of the court requiring a party to do or refrain from doing something.
What is an interim injunction?: A temporary measure taken at an early stage in the proceedings. The injunction remains in force until it is discharged by the court.
When is an interim order likely to be sought?: Where the applicant feels that if the respondent is unrestrained, it may cause irreparable (or immeasurable) damage to the applicant.
What are the two categories of injunction?: (1) Perpetual injunction; or
(2) Interim injunction.
What is a perpetual injunction?: It is the final injunction that continues with no limitation of time.
What is a mandatory injunction?: A an injunction that requires the other to do a specific act.
What is a prohibitory injunction?: An injunction that requires the other side to refrain from doing an act.
Are both a mandatory and prohibitory injunction available even where no wrong has been done but merely threatened?: Yes. This is known as a quia timet injunction.
What CPR gives the court the power to grant interim injunctions?: CPR 25.1(1)(a)
When will the High Court grant an injunction and on what authority?: When it's 'just and convenient' to do so on the authority of s. 37 of the Senior Courts Act 1981
On what authority can the County Court grant an interim injunction?: S. 38 of the County Courts Act 1984
Legally what is the nature of an injunction?: It is both an equitable and discretionary remedy.
What are three examples of equity maxims?: (1) He who comes to equity must come with clean hands;
(2) Delay defeats equity; and
(3) Equity will not act in vain.
Is there an automatic right to an injunction?: No, the court has complete discretion.
What must you have in order to pursue an injunction?: A pre-existing cause of acton within the court's jurisdiction.
Will the court award an injunction where damages would be an appropriate remedy?: No.
When are damages likely to be inappropriate?: (1) The harm is serious and likely to continue;
(2) The harm is irreparable;
(3) The harm is difficult to assess or cannot be quantified in financial terms; or
(4) The respondent has not means of paying damages.
What must the courts also consider while assessing interim injunctions?: The overriding objective.
When is the court likely to grant a mandatory injunction?: 1) where the applicant will suffer harm if not granted;
(2) the application is likely to succeed at trial; and
(3) the respondent is not required to incur expenditure disproportionate to the applicant's harm.
What case laid down guidelines on how the court's discretion should be exercised in determining whether to grant an interim prohibitory injunction?: American Cyanamid Co. v Ethicon Ltd
American Cyanamid Co. v Ethicon Ltd: This case laid down guidelines on how the court's discretion should be exercised in determining whether to grant an interim prohibitory injunction.
What are the American Cyanamid guidelines?: (1) is there a serious question to be tried?
If yes:
(a) would damages be an adequate remedy if the court granted, or failed to grant, the injunction? and
(b) if not where does the 'balance of convenience' lie?
What is required to satisfy the first of the American Cyanamid guidelines?: Whether there is a serious question of fact or law to be decided?
What constitutes a serious question of fact or law?: The claim should not be 'frivolous or vexatious'
In terms of assessing whether damages would be an adequate remedy, what should you consider?: You must consider damages for the applicant and damages for the respondent.
When assessing damages for the applicant, what should you consider?: If the applicant succeeds in the eventual trial, will damages be adequate compensation.

If not, the court will go on to consider the remaining factors. If so, the injunction will normally be refused.
When considering damages for the respondent, what will the court consider?: Whether the respondent would be adequately compensated under the applicant's undertaking as to damages if it transpires that the injunction was wrongly granted.
What is the 'applicant's undertaking as to damages'?: This is the applicant's undertaking to the court to compensate the respondent for any loss incurred by the R during the currency of the injunction, if it later appears that the injunction was wrongly granted.
What should the court consider in determining where the 'balance of convenience' lies? Case?: The court will need to take into account all the issues relevant to the balance of convenience - Series 5 Software Limited v Clark and Others
Series 5 Software Limited v Clark and Others: The court will need to take into account all the issues relevant to the balance of convenience
What will the courts also consider in determining where the 'balance of convenience' lies?: The court will also consider the 'equity' of the situation, e.g. has the applicant delayed in anyway?
Case: The court might refuse to grant an injunction when it would not be in the public interest to do so.: Roussel-Uclaf v G.D. Searle and Co Ltd
Roussel-Uclaf v G.D. Searle and Co Ltd: The court might refuse to grant an injunction when it would not be in the public interest to do so.
Case: What will the court consider if the balance of convenience is inconclusive or too finely balanced?: The court will take such measures as are calculated to preserve the status quo - Fellows and Son v Fisher
When is the status quo position to be taken as being from?: The position before the respondent started the conduct that the applicant is complaining about.
What must the court not do. This is something that you must reference in your exam.: The court should not conduct a mini-trial. The court can however look at the merits of the case.
What defences might the respondent raise?: (1) Delay
(2) Acquiescence
(3) Inequitable conduct
(4) Hardship
(5) Equity does not act in vain
(6) Court cannot enforce the order in question
What is the defence of acquiescence?: This is where the applicant's conduct (or inactivity) induces the respondent to believe something to his detriment.
AG v Guardian Newspapers: Equity will not act in vain. In this case the court refused to grant an order to restrain breach of confidence because there had already been widespread publication.
In this case the court refused to grant an order to restrain breach of confidence because there had already been widespread publication.: AG v Guardian Newspapers
Equity will not act in vain.
Who may apply for an interim injunction?: A claimant or a defendant.
What are the parties to an interim injunction referred to as?: Applicant and respondent
When can an application be made?: Generally made after the issue of proceedings but can be made before proceedings
When can an interim injunction be granted before proceedings?: (1) if urgent; or
(2) in the interests of justice (CPR 25.2(2)(b))
How can an application for an interim notice be made?: With or without notice CPR 25.3
In terms of applying for an interim remedy without notice, what must the applicant do?: The applicant must disclose fully to the court all matters relevant to the application, including adverse matters.
Memory Corporation plc v Sidhu: There is a 'high duty' of disclosure (for the purpose interim applications made without notice) and the applicant must make a full, fair and accurate disclosure of material information to the court.
What is generally the evidence in support of an interim injunction and what ought it contain?: Witness statement:

(1) the cause of action;
(2) the injunction sought;
(3) why the injunction should be granted;
(4) if without notice, why so; and
(5) ability to satisfy an undertaking in damages.
What will a court usually do when an interim injunction is granted without notice?: Set a return date. This is the date for the with notice hearing.
If a matter is particularly urgent, what might you request?: Request that a without notice application be made before the application notice has been issued. If so, evidence and without notice application must be filed on the same or next working day (25A PD 4.3(2))
Might a court ever deal with a without application notice by telephone?: Only in cases of extreme urgency (25A PD 4.2 and 4.5)
What are the sanctions for breach of an injunction?: (1) Committal to prison
(2) A fine
(3) Sequestration of assets
What is a freezing injunction?: (1) An interim order
(2) restraining a party
(3) from removing assets
(4) located within the jurisdiction
(5) out of the jurisdiction; or
(6) from dealing with assets
(7) whether located within the J or not.
What is the CPR reference for an interim injunction?: CPR 25.1(1)(f)
What was a freezing injunction formerly known as?: Mareva injunction
What is the purpose of a freezing injunction?: To prevent the respondent's assets being dissipated to frustrate the enforcement of any judgment the applicant may obtain.
What two types of freezing injunctions does the court have the power to grant?: (1) a domestic freezing injunction; or
(2) a worldwide freezing injunction
Guidelines as to when a worldwide freezing injunction will be granted.: Dadourian Group Interinational v Simms
Dadourian Group Interinational v Simms: Guidelines as to when a worldwide freezing injunction will be granted.
What is the effect of a freezing injunction?: All assets up to a certain value cannot be removed, specify examples.

Respondent is allowed to spent a reasonable amount each week.
Who can be found to be in content of court if a freezing order is breached?: The respondent or anyone else with notice of the order, i.e. the respondent's bank, etc. Serve everyone!
What must the applicant do after having obtained a freezing order?: The applicant must press ahead with proceedings given that the respondent's assets are frozen.
S. 37(1) Senior Courts Act 1981: This enables the court to grant freezing injunctions where is appears 'just and convenient' to do so.
This enables the court to grant freezing injunctions where is appears 'just and convenient' to do so.: S. 37(1) Senior Courts Act 1981
What kind of remedy is a freezing injunction?: It is an equitable remedy, as such the usual equity maxims apply.
What four requirements must be met before the court will grant a freezing injunction?: (1) A substantive cause of action justicable in E&W;
(2) A good arguable case
(3) Respondent has assets in E&W
(4) Real risk of disposal, dissipation or the assets being hidden in any way that will hinder enforcement of the judgment
What must the applicant have for the purpose of underpinning an application for a freezing injunction?: The applicant must have a underlying cause of action (e.g. breach of contract) as a freezing injunction is a remedy. It is not a cause of action.
A good arguable case is one which is more than barely capable of serious argument and yet not one which the judge believes to have a better than 50% change of success.: Ninemia Maritime Corp v Trave
Ninemia Maritime Corp v Trave: A good arguable case is one which is more than barely capable of serious argument and yet not one which the judge believes to have a better than 50% change of success.
What equitable maxim applies when determining whether the respondent has assets in the jurisdiction?: Equity will not act in vain
What will the court consider in determining whether the respondent is likely to dispose, dissipate or hide assets?: (1) Evidence of dishonesty
(2) Any incidents of debt default
(3) Evidence of removal or disposal
(4) Where are the assets located
(5) Where is R based? Tax haven?
For the purpose of an FI application, if in doubt as to whether to disclose a piece of information, what should the applicant do?: Disclose it - applicant obliged to make a full and fair disclosure
What are freezing injunctions usually obtained?: Without notice
What documents must be submitted in support of a FI application?: (1) Application notice
(2) Draft order
(3) Affidavit in support
(4) Claim form
If a freezing injunction is granted, what must the applicant undertake to do?: Must give an undertaking to pay damages to the respondent if it transpires that the application should not have been granted.
What must the affidavit in support be supported by?: Evidence
With regarding to corporate clients, when applying to the facts what matters should you take into account?: The financial consequences, perhaps job losses and/or factory closures

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