INTERIM INJUNCTION

Introduction

Interim injunctions are temporary orders granted by the court to preserve, or regulate in some other way, the position
between the parties, pending trial. A respondent who does not obey an injunction will be in contempt of court. If the
trial of the action has not yet happened and it is thus not yet decided whether the defendant has done anything wrong,
you can see how serious it is to order, in the meantime, an interim injunction against that defendant. This is why
applicants who obtain interim injunctions are required to give what is known as an ‘undertaking in damages’ – a
protection for the D.

Because the orders themselves, and the consequences of breach, are so serious, it is worth noting that applications
for interim injunctions are normally heard by a High Court or Circuit Judge.

The court’s general jurisdiction to grant interim injunctions is statutory. The Senior Courts Act 1981, s.37 says that the
High Court may grant injunctions (final or interim) in all cases when it appears ‘just and convenient’.

Procedure

High Court or County Court?

• Specialist injunctions (for example, most Search Orders, which are not on your syllabus) and specialist
causes of action (for example, libel) can only be dealt with in the High Court.

• Otherwise both the High Court and County Court have jurisdiction to grant interim injunctions. So the applicant
can choose. Wherever the substantive claim is brought is where the interim application would be made. If a claim is to
be brought in the High Court, a specialist court (for example the IPEC which deals with intellectual property cases)
may need to be considered.

Procedural requirements

• Issue claim form. This must specify the remedy the claimant seeks and so should include a claim for an
injunction as a final order. It is possible for other parties to an action to apply for an interim injunction (for example, a
defendant in his counterclaim). See below regarding urgent applications

• Apply using the relevant application notice, a special interim injunction application notice

• Draft Order should be attached

• Written evidence in support

• Service must be effected as soon as practicable and in any event at least 3 clear days before the
hearing, unless there are grounds for applying without notice, for example :

➢ Need for secrecy (for example freezing injunctions). This is not normally relevant to the types of injunctions
applications SA17 is testing.
➢ Urgency (for example tort likely to be committed tomorrow). This is the usual reason for being unable to give
formal notice; see below.
➢ Overriding objective is best furthered by this
➢ Consent of all parties
➢ Permission of the court
➢ Where a court order, rule or PD permits

• Usually need a skeleton argument

• Statement of costs 24 hours before the hearing

• Traditionally heard by a Circuit or High Court Judge. PD2B paras 3.1 and 8.1 allow Masters and District Judges
to hear interim injunction applications (other than freezing injunctions and search orders), but they will usually
refer injunction applications to the Circuit or High Court Judge.

Timing (Revision of procedural matters covered in SA15)

• Applications are usually made after the claim form has been issued. But an order for an interim remedy may
be made at any time, including-

(a) before proceedings are started; and

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(b) after judgment has been given: r.25.2(1).

Unless any rule, PD or other enactment provides otherwise: r.25.2(1)/(2)(a).

• According to CPR r.25.2(2)(b), a pre-action application can only be made if:

(i) the application is urgent; or

(ii) it is otherwise necessary to do so in the interests of justice.

• Note that a defendant who might want to make an application may not apply before acknowledging service or
filing a Defence, unless the court otherwise orders: r.25.2(2)(c). This makes sense since before then the court will be
unaware of whether he is even defending the action much less making his own (counter)claim.

• In any event, PD23A para 2.7 provides that every application should be made as soon as it becomes
apparent that it is necessary or desirable to make it.

• The court has jurisdiction to grant interim protection by interim injunction to a party who has been unsuccessful
at trial, pending an appeal (since the matter is not yet fully resolved).

Without notice applications

• Without notice applications are the exception not the rule.

• An applicant has the duty of full and frank disclosure. This is an important principle of all interim
applications. It basically means the applicant must compensate for the respondent’s absence (by drawing the
court’s attention to significant facts and legal arguments against the grant of the application), not exploit it:
• An application can be made even by telephone: PD25A para 4.5.
• Note that unless the application is secret, the applicant has a duty to give informal advance notice to the
respondent: PD25A para 4.3(3). This might mean the respondent can and will attend the hearing.
• Applicant may have to give additional undertakings (PD25A para 4.4). In effect whatever an applicant has not
been able to do procedurally (for example, issue the claim form) which, but for the urgency, would have been
required, that applicant will have to promise to do.

1. Interim Injunctions:
CPR 25.1
(1) The court has a discretion to grant the following interim remedies:
(a) an Interim injunction and (the list goes on detailing a range of interim remedies that can be
granted)
(3) The fact that a particular kind of interim remedy is not listed on the list does not affect any power
that the court may have to grant that remedy
(4) The court may grant an interim remedy whether or not there has been a claim for a final remedy of
that kind.

Commentary
Interim Injunction r.25 (1) (a)
25.1.9 – Introduction
• Prohibitory injunctions: restrains the respondent from conduct which must be defined in the
order, for example, that the defendant be forbidden (that is, prohibitory) from publishing
particular photographs (the defined conduct)
• Mandatory injunctions: require the respondent to do defined actions, for example, that the
defendant must (that is, mandatory) demolish a wall the defendant constructed on the
claimant’s land as marked in red on an attached plan [the defined conduct]
• Quia timet injunctions: are used where the respondent is threatening to do some civil wrong
in the future
• An order other than a final judgment, whether such order be made before judgment or not,
may properly be described as interlocutory order. An injunction granted by interlocutory order
is defined as an interim injunction;
• If the applicant cannot define the relief sought with a sufficient degree of precision (for
example, the extent of an area of land, or the trade secrets or confidential information alleged
to require protection), no injunction will be granted
25.1.10 – Jurisdiction
• Provided the court has personal jurisdiction over the respondent, the court has unlimited
discretion to grant an injunction where it appears to be just and equitable to do so: s.37 of
SCA 1981. It will usually exercise such power in accordance with existing practice.
• It is now settled that injunctive relief may be granted in cases even where there is no claim for
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 substantive relief.
• The County Courts Act 1985, s.38: Generally, in any proceedings in a county court, the court
may make any order which could be made by the High Court if the proceedings were in the
High court.
25.1.11 – Principles and guidelines to be applied
• The apparent greater reluctance of the courts to grant mandatory injunctions (or injunctions
carrying the same risk of injustice as mandatory injunctions) as opposed to prohibitory
injunctions is not the application of a different principle but is because a mandatory injunction
is often more likely to cause irremediable prejudice than cases in which a defendant is merely
prevented from taking or continuing with some course of action
• it is now well-established as a general principle that, on an application for an interim
injunction, the court should not attempt to resolve “critical disputed questions of fact or difficult
points of law” on which the claim of either party may ultimately depend.
• Delay in making the application for a freezing order is a factor to be taken into account

UNDERTAKINGS

By claimants: undertaking in damages etc.

In order to obtain an injunction, a claimant will ordinarily be required to give undertakings (promises to the court not
the defendant) given in exchange for an interim injunction, especially an undertaking in damages. This latter is an
important protection for the defendant. Strictly speaking, the court has no jurisdiction to order a party to make it such a
promise, but this is something the applicant must be prepared to do as a condition of getting the injunction. Such
undertakings have been described as the ‘price’ of an interim injunction.

Procedurally, such an undertaking will be required to protect the respondent or any other person who may be affected
by the injunction. WB Vol 2, para 15-25 and see below.

However reluctantly given, a claimant would not normally be entitled to appeal this aspect of the court’s order (since it
is something of a package deal), but could seek to be released from an undertaking (usually to be replaced by
another) but, normally, only if a change of circumstances is shown. If a claimant really does not want to ‘abide by’
(which means comply with) the undertaking proposed by the court, he could refuse to give the undertaking, knowing
that the interim injunction will be refused, and then appeal that refusal. WB para 25.1.14.2.

Undertakings in damages are not required where the Crown or a local authority is seeking an interim injunction to
enforce the law (Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227; United States
Securities and Exchange Commission v Manterfield [2010] 1 WLR 172), unless the defendant shows a strong prima
facie case that its conduct is lawful (F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975]
AC 295). The court has a discretion to order an interim injunction subject to a limited undertaking in damages: RBG
Resources plc v Rastogi (2002) LTL 31/5/02. In environmental claims governed by the Aarhus Convention the court is
required to have particular regard to the need for the terms of the order, including any undertaking in damages, not to
be such as would make continuing with the claim prohibitively expensive for the claimant (PD 25A, para 5.3).

An applicant is occasionally required to fortify the undertaking in damages by providing security, paying money into
court, or by requiring a non-party to be also bound to honour the undertaking. Such an order should only be made if
there is a good arguable case that fortification is required (Energy Venture Partners Ltd v Malabu Oil and Gas Ltd
[2015] 1 WLR 2309). That, according to Brainbox Digital Ltd v Backbord Media GmbH [2018] 1 WLR 1149, requires:

(a) a good arguable case that there is a sufficient level of risk that the respondent will suffer loss to require fortification;

(b) a good arguable case that the loss will be caused by granting the injunction; and

(c) an intelligent estimate of the likely amount of loss caused by the effects of the injunction that might not be covered
by the applicant’s usual undertaking in damages.

Standard form undertaking in damages

‘If the Court later finds that this order has caused loss to the defendant or any other party served with or notified of
this order and decides that the defendant or other party should be compensated for that loss, the claimant will comply
with any order the court may make.’

PD25A Guidance

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PD25A para 5.1(1) provides that any order for an injunction, unless the court orders otherwise, must contain ...,
an undertaking by the applicant to the court to pay any damages which the respondent sustains which the court
considers the applicant should pay.

PD25A para 5.2: ... when the court makes an order for an injunction, it should consider whether to require an
undertaking by the applicant to pay any damages sustained by a person other than the respondent, including another
party to the proceedings or any other person who may suffer loss as a consequence of the order.

Some applicants will not have much money and so will not be able to give a very ‘meaningful’ undertaking in damages
(which will not provide much protection to the respondent). This will not bar the applicant absolutely from getting his
interim relief, but it will be something taken into account in deciding whether to grant the injunction. WB Vol 2, para
15-30.

Without notice undertakings

Additional undertakings may be necessary, for example:

• Undertaking to issue and serve claim form

• Undertaking to file signed evidence

• Undertaking to apply for a hearing on notice (to renew the injunction)

Undertakings by defendants, instead of an injunction

Instead of contesting an application for an interim injunction, a defendant may, pending trial, give undertakings in
terms similar to that sought by the claimant. Because these are voluntary promises given to the court, breach would
be a contempt of court.

Note that where undertakings are incorporated into a consent order (that is, an agreement/promise between the
parties), these may be construed as having contractual effect. In such cases, breach may also be enforced as a
breach of contract, resulting in a claim for damages.

A party who seeks to be released from an undertaking, must apply to the court for release or discharge – strictly
speaking undertakings are not varied (although the WB commentary itself uses the term incorrectly at times), but a
different undertaking can be accepted and substituted (which more or less gets you to the same place). WB para
25.1.14.2.

A party applying for release from an undertaking must show ‘special circumstances’ justifying such release. This will
be determined by reference to the interests of justice and the overriding objective. A mere change of mind or a re-
assessment of facts known at the time the undertaking was given will not normally be sufficient. WB para 25.1.14.1.

If an interim injunction is granted ex parte (without notice), but later compromised by means of a consent order, that
order must make clear whether the injunction (or application to continue the injunction) has been
discharged/dismissed or not, as this will affect whether and how the defendant may seek to be released from that
obligation. WB para 25.1.14.1. In this context, the distinction between orders arising from the court’s discretion
(injunction or acceptance of undertakings) and a consent order (resulting from the parties’ agreement) can be
important. The court will be even more reluctant to set aside an obligation which parties have freely entered into. WB
para 25.1.14.1, final para.

The normal test: American Cyanamid principles

The general rule is that so long as the action is not frivolous or vexatious, a decision at this interim stage should be
determined by reference to what was described (with typical English understatement you may think) as the ‘balance of
convenience’, i.e. which side would suffer the more irremediable hardship by not getting what it wants at this stage.
This is the well-known test in the leading case of American Cyanamid v Ethicon. In particular, this case made clear
that a detailed examination of the merits of the case ought to be left to trial, where witnesses can be heard and the
credibility of the evidence properly tested. Thus, except in special circumstances, which we will come to, it is only as a
last resort (to help) that the court, at this interim stage, should scrutinise the substantive merits of the case and
attempt to predict the ultimate outcome.

American Cyanamid Principles

You can think of this as something of a checklist:

1. Is there a ‘serious’ (as opposed to silly) question to be tried?

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 • Lord Diplock said it is not the function of the court at the stage of interim injunction to try to resolve conflicts of
evidence or decide difficult questions of law.
• Therefore, the court needs to be satisfied only that there is a serious question to be tried on the merits. The
result is that the court is required to investigate the merits to a limited extent only. All that needs to be shown
is that the claimant’s cause of action has substance and reality. Beyond that, it does not matter if the
claimant’s chance of winning is 90 per cent or 20 per cent: Mothercare Ltd v Robson Books Ltd
• This is not a difficult hurdle to surmount.
• On the other hand, if there is no serious question to be tried on the substantive claim, for example if the claim
is hopeless, the injunction must be refused.

2. Are damages an adequate remedy for the claimant?

• Lord Diplock said that If damages in the measure recoverable at common law would be an adequate remedy
and the defendant would be in a financial position to pay them, no [interim] injunction should normally be
granted.
• Damages will often be an adequate remedy for the claimant in claims for breach of contract.
• Factors that are taken into account include whether the injury to the claimant’s rights is small, whether the
injury can be estimated in money, and whether it would be oppressive to the defendant to grant an injunction.
• Damages will be adequate if:
➢ D unable to pay the sum
➢ The injunction is to preserve goods which cannot be replaced on the market
➢ Damages would be difficult to assess. Examples: loss of good will or disruption in business.
• As where the claimant fails to show a serious question to be tried, if damages would be an adequate remedy
that is the end of the matter and the injunction must be refused

3. Is the defendant adequately protected by the claimant’s undertaking in damages in case the injunction is wrongly
granted?

• Applicants are invariably required to give undertakings to pay damages to the respondent in the event that it
turns out that the interim injunction was wrongly granted. Lord Diplock said that if the damages recoverable
under an undertaking in damages would be an adequate remedy (protection) for the respondent, 'there would
be no reason upon this ground to refuse an injunction'.
• Lord Hoffman in National Commercial Bank v Olint Corporation: If there is a serious issue to be tried, and the
claimant could be prejudiced by the acts or omissions of the defendant pending trial, and the claimant’s
undertaking in damages would provide the defendant with an adequate remedy if it transpires that his freedom
of action should not have been restrained, an interim injunction should ordinarily (perhaps not inevitably) be
granted.
• If the undertaking does not adequately protect the defendant, although that is a reason for refusing the
injunction, normally the court will go on to consider the balance of convenience.

4. Other factors weighing into the ‘balance of convenience.’ Most applications ‘tip’ at this stage.

• This is the stage where other hardship factors are put into the balance in deciding whether the grant or refusal
of the injunction would cause an ‘uncompensatable disadvantage’ to one side. Lord Hoffman referred to the
notion of 'irremediable prejudice' in the National Commercial Bank (cited above). It is basically looking at
harm that money cannot easily buy back.
• Factors brought into the balance here can include:

➢ Effects of defendant’s conduct. Damage to the claimant’s business reputation; need to protect the
claimant’s intellectual property rights; need to prevent the defendant misleading the public; making
profits using the claimant’s hard earned goodwill
➢ Utility of the defendant’s activities
➢ Effects on non-parties, such as employees, customers, neighbours
➢ Restrictions imposed by proposed order: whether unduly harsh
➢ The extent to which the prejudice may be compensated by an award or undertaking;
➢ The likelihood of either party being able to satisfy such an award
➢ The likelihood that the injunction will turn out to have been wrongfully granted or withheld.
• A claimant can reduce the potential injustice to the defendant by drafting the terms of the injunction as
narrowly as is consistent with preserving the claimant’s interests, or by offering undertakings to provide extra
safeguards for the defendant.
• Matters found to important include:
➢ Being deprived of employment
➢ Damage to business through picketing
➢ Damage to goodwill of business
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 ➢ Closing down business
➢ Company would end up.
➢ Public benefit of the defendant’s activities
➢ The length of time to trial (the shorter, the stronger argument for granting injunction)

5. How best to preserve the status quo

In American Cyanamid, it was said that ‘where other factors appear to be evenly balanced it is a counsel of prudence
to take such measures as are calculated to preserve the status quo. According to Lord Diplock: the relevant status
quo is the state of affairs:

• in the period immediately before the claim form is issued, or

• if there has been unreasonable delay in applying for the injunction after the claim form was issued, in the period
immediately before the interim application was issued

Minimal periods between the defendant starting the conduct complained of and the claimant issuing the claim form are
ignored.

Note however, that it can be difficult to determine the ‘status quo’ and there may be cases where preserving the status
quo will itself cause injustice.

6. Any special factors (if not considered at step 4)

There might be special factors which tip the balance. These would be very particular to the case at hand. They are
really just special factors affecting the balance of convenience and so can just as easily (and perhaps more logically)
be considered at step 4.

7. Last resort: substantive merits

• The court rarely gets to this point and only as a last resort in this context. Basically, if the court gets to this
point it has run out of other options. This is assuming the relative merits of the parties’ cases are difficult to
assess. The easier it is to discern that one side’s case is stronger than the other, the more likely this might be
put into the balance of convenience.
• In his judgment Laddie J said the following were the guidelines to be adopted on a proper analysis of the
American Cyanamid decision:(a)that interim injunctions are discretionary and all the facts of the case must be
considered;(b)there are no fixed rules, and the relief must be kept flexible;(c)the court should rarely attempt to
resolve complex issues of disputed fact or law;(d)important factors in exercising the jurisdiction to grant
interim injunctions are:(i)the extent to which damages are likely to be an adequate remedy to either side, and
the ability of the other party to pay;(ii)the balance of convenience;(iii)maintaining the status quo; and(iv)any
clear view the court may reach about the relative strength of the parties’ cases.

EXCEPTIONS/VARIATIONS of American Cynamid

There are two important assumption which lie behind the decision in American Cyanamid

1. The appropriate place to determine the merits of the case is at trial, where conflicting evidence can be properly
scrutinised and tested. The interim judge does not have the tools, or the time, to consider properly the substantive
merits of the case.

2. There is, in fact, going to be a trial of the action.

A. 'Merits' exceptions/adaptations

(i) FINALLY DISPOSES OF A CLAIM

American Cyanamid imposes a low threshold on the merits of the claim, which can be justified as a means of keeping
use of court time proportionate in cases where it is anticipated there may well be a trial.

However, there are some cases where there is no realistic chance of the case ever going to trial. Granting an interim
injunction without considering the merits in a meaningful way in such a case contravenes the defendant's right to a fair
trial.

Two questions arise (Cayne v Global Natural Resources plc [1984] 1 All ER 225; Channel Tunnel Group Ltd v Balfour
Beatty Construction Ltd [1993] AC 334):

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(a) on the assumption that the injunction is refused, and taking into account the likely length of time it will take to get to
trial and the probable factual situation at that time, is there any realistic possibility that the claimant will wish to
proceed to trial? Assertions by claimants that they will in any event proceed to trial to recover damages may be
disregarded if in reality a trial would be a meaningless gesture: Lansing Linde Ltd v Kerr [1991] 1 WLR 251; and

(b) on the assumption that the injunction is granted, is there any realistic prospect of the defendant insisting on going
to trial to vindicate its defence and having the injunction discharged?

Where neither party has a real interest in going to trial, the interim application will finally determine the claim.

Principles in final disposal applications

Where this exception applies, the claimant has to establish a far stronger case than merely a 'serious
question'. Formulations differ in various authorities, but may be as high as 'an overwhelming case' on the
merits. Cayne v Global Natural Resources plc [1984] 1 All ER 225

Chambers v British Olympic Association [2008] EWHC 2028 (QB)

• Injunction aimed at allowing athlete to compete in the Beijing Olympics despite a rule in the Association’s
rulebook preventing this where a drugs test had been failed
• Interim injunction finally disposed of the case
• Applied a 'high degree of assurance' test

(II) CLAIMANT OBVIOUSLY ENTITLED

No Defence

Where the defendant has no defence to the claim, the claimant can apply for summary judgment for a final
injunction.

Even if the claimant does not apply for summary judgment, but just applies for an interim injunction, the court often
does not apply American Cyanamid if there is no defence, and simply applies normal equitable considerations in
deciding whether to grant the interim injunction

The court will not consider the balance of convenience, but will grant the relief claimed subject to the usual equitable
considerations. Injunctions have been granted on this basis in cases of clear trespass and of clear breach of contract.
Similarly, if all that is at issue on the merits is a simple point of construction, the court will resolve it and dismiss or
grant the application accordingly.

Negative covenants

An example is a covenant in a lease given by the tenant not to make structural alterations to the property, or not to
keep pets at the property.

Injunctions in these cases are normally granted as a matter of course. All you have to prove are:

a) That the defendant has made the promise not to do something; and

b) That they are now doing it.

If the facts are not disputed and the law is uncontroversial, then again there is no serious issue to be tried. All the
injunction is doing is enforcing compliance with what the defendant has already promised not to do.

INTERIM MANDATORY INJUNCTION

Interim mandatory injunctions are particularly sensitive, because they require an act to be done and thus can have the
effect of over-reaching the defendant in ways not readily compensated by the undertaking in damages. Being interim
remedies, this obviously is happening before liability has been established.

It used to be said that a mandatory interim injunction would not be granted unless the judge can feel a 'high degree of
assurance' about the cause of action: Shepherd Homes Ltd v Sandham [1971] Ch 340 Megarry J. This has been
called into question as a pre-requisite, and the situation is now more nuanced.

Nottingham Building Society v Eurodynamics Systems [1993] FSR 468 held that the American
Cyanamid guidelines apply to an application for an interim mandatory injunction. When considering whether there
ought to be a higher test applied, by virtue of the mandatory relief requested, four guidelines were laid down:

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1. The overriding consideration is whether granting or refusing the injunction is likely to involve the least risk of
injustice, should the interim decision turn out to be ‘wrong’ (that is, the other party ultimately wins at trial).

2. The court must keep in mind that an order requiring a party to take some positive step at an interim stage may well
carry a greater degree of injustice than preserving the status quo, if at trial the order turns out to have been wrongly
made.

3. In a case in which a mandatory interim injunction is sought, it is legitimate to consider whether the court feels
a high degree of assurance that the applicant will be able to establish his case at trial, as the greater the degree of
assurance the lower the risk of injustice.

4. Even where the court does not feel a high degree of assurance, there may be circumstances in which it is
appropriate to grant an interim mandatory injunction, based on the balance of risk of injustice between the parties.

National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405, at

[19], Lord Hoffmann said:

There is no underlying difference in principle between interim prohibitory and mandatory injunctions. His Lordship’s
view is that it is often more likely that there will be irremediable prejudice to the defendant if the injunction is
mandatory in nature.

If the injunction is likely to cause irremediable damage to the defendant, the court should be reluctant to grant the
injunction unless it is satisfied that the chances that it will turn out to have been wrongly granted are low. It is for this
reason that it is said that mandatory injunctions should be granted only if the court felt a ‘high degree of assurance’
that at trial it will turn out that the injunction was rightly granted.

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