An injunction is an order of the Court which requires a party to either carry out a specified act (mandatory injunction) or to refrain from carrying out a specified act (prohibitory injunction). An injunction is an urgent and serious remedy and can be dealt with as a stand-alone matter or as part of wider Court proceedings. A business may require an injunction for a variety of reasons but will often seek an injunction for the protection of business assets or confidential information.
Injunctions can be utilised in all kinds of cases and are commonly used in the following areas: –
- Disclosure of sensitive information or trade secrets;
- Patent and copyright;
- Preserving assets;
- Defamation; and
- Breach of restrictive covenants in an employment contract.
The Procedure for applying for an Injunction
An application for an injunction can be made before or after Court proceedings have begun. An application made prior to a trial is commonly known as an ‘interim’ injunction and will typically remain in force until the final trial; at which point, the Court will decide whether or not to grant a ‘final injunction.’
Any business considering applying for an injunction must be sure they have a strong underlying case. Once satisfied, a Court application will be made either with or without notice. This will depend on the urgency of the matter and the nature of the remedy sought. For example, an application for a freezing order will usually be made without notice to prevent the other party from dissipating the assets before an order is made.
There are strict rules and procedures which must be followed and injunction applications must show the following: –
- They must demonstrate that there is an urgency required and a real and genuine threat to the applicant’s legal rights and business interests;
- They must provide a substantial undertaking of costs; and
- They must give full disclosure of all material facts and evidence, regardless of whether this is unfavourable to their claim.
An application for an interim injunction should generally be supported by evidence. This will usually be in the form of a witness statement or affidavit including all material facts of which the Court should be made aware.
The next steps will depend on whether the application was made without or without notice. A without notice application is made without the other party having any notice of the application or being present at the hearing. This could mean that only the applicant is present during the first hearing. Following this, a further hearing may be listed where the Respondent will be given the opportunity to attend.
An injunction is an equitable and discretionary remedy. There is no obligation for the Court to grant an injunction and they will only grant one if it is just and convenient to do so. Of note, the Court will not grant an injunction when damages serve as an adequate remedy. Put simply, if financial compensation is a sufficient redress for the party, then damages will likely be the appropriate remedy.