When considering applying for an interim injunction, be aware that the worst thing you can do as regards injunctions is to not prepare properly, to not understand your legal position or have the best and most thorough evidence. You will need to move quickly and appreciate also that if an injunction is denied by the court or set aside or watered down, your case may be severely damaged, both in legal terms and tactically.
As against that, with a situation where your business is under severe threat, perhaps because an employment restrictive covenant has been breached or a major fraud has happened, applying for an injunction may be absolutely necessary. We would generally not recommend any application which is just made for tactical reasons, to try and intimidate an opponent.
Applying on notice or without notice?
The starting point here is that the circumstances are paramount. With a fraud situation, it is highly likely that there will be no correspondence or notice given before an injunction application is made. the element of surprise is vital in that scenario.
At the other end of the spectrum, with a potential interim court injunction based on passing off, the immediate threat is much lower and an applicant will probably need to have sought, through correspondence, to set out the case, offer a clear warning and possibly serve the injunction application on the opponent and enable the defendant to oppose the application at the hearing.
A middle ground may be an employment restrictive covenant dispute. Where valuable data has been unlawfully obtained and used, creating a significant risk, correspondence may suffice and in default of compliance, an application without notice may be appropriate.
What types of legal situations might involve injunction applications?
These can include:-
- intellectual property issues including copyright, patent, trademark, passing off claims;
- shareholder disputes;
- fraud or where there is risk that funds involved in the dispute may be dissipated;
- restraining publication of possibly defamatory comments;
- wrongful use of confidential information and trade secrets;
- employment law restrictive covenants;
- breach of confidence claims;
- preventing the sale of land or property;
- preventing the presentation of a winding up petition against a company.
Satisfying the court in order to get the injunction order
In addition to consideration of the legal basis for an application and the available evidence given that an injunction order is very serious and will significantly impact the defendant, the court needs to be satisfied on other aspects and for there to be compliance with prerequisites including:
- demonstrating real urgency and threat to the applicants legitimate legal rights and business interests
- providing a suitable undertaking on costs – the court must be satisfied that the applicant can cover the defendants legal costs if it later turns out that the injunction was unnecessary or unmerited legally
- there must be full disclosure of all material facts and evidence when applying, not just facts supporting the applicant
Types of injunction orders
- freezing orders – relating to bank accounts and will need to be served on not only the defendant but also on banks where he, she, they have identified accounts so as to prevent a party from dissipating or dealing with assets in a manner likely to result in a final judgment being left unsatisfied
- search orders – requiring access to be given to search for and seize evidence so as to preserve it, possibly on computers or any other media which would have most likely been disposed of on notice of legal proceedings.
- disclosure orders – requires a party to make a reasonable search for documents which must then be disclosed.
Potential international injunction aspects
In some circumstances, the English courts will grant a freezing order there legal proceedings have started overseas, but will adopt a cautious approach. Likewise, especially with freezing injunctions involving fraud, it is not unusual for a fraudster to move money abroad and so action may also be needed to implement an injunction order from the UK in those jurisdictions.
Contact our commercial litigation experts today
For more information on pleadings or resolving a commercial or business dispute issue, please contact our experienced dispute resolution lawyers on 01895 207954 or email firstname.lastname@example.org.
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