What is an injunction?
The most common form of injunction is an order that prevents person who is suspected to be in the wrong from doing specific acts. They can also require someone to do a specific act.
They are designed to preserve the status quo and to prevent harm, or more harm, from taking place. They can be granted while the courts resolve an ongoing dispute (an ‘interim injunction’) or at the conclusion of a case (‘final injunction’).
An interim injunction be granted at any stage - during ongoing court proceedings; or even before a case has formally started. These types of order are typically only granted in urgent cases where no other remedy is suitable, and then only until the court can decide whether it should make a final injunction order.
Final injunctions are injunctions that are granted after the court has determined a case, and can remain in place beyond the conclusion of a dispute, provided that the court considers their protective benefit remains justified.
When might you need one?
You might want an interim injunction if, for example, a competitor has started using your logo on their products, and your informal efforts to resolve the situation are proving to be unsuccessful. You might want to threaten this competitor with court action. But while the formal court process is ongoing, which includes often lengthy preparation periods, a court may agree to grant you an interim injunction that would stop your competitor from using your logo on any products, until the matter has been properly discussed and resolved.
That same order may also instruct your competitor to hand over to you any products featuring your logo that are in their possession, or to cease doing anything with those products until the outcome of the dispute is known. If you win your case, the court can then make that injunction permanent, in your favour.
If you have employees, you might one day need to apply for an injunction against one of your current or former staff members. For example, if you have evidence that they are improperly using the business’ confidential information, or perhaps if you hear that they’re trying to poach your employees to work with them elsewhere. An employment-specific type of injunction – called a ‘springboard injunction’ – prevents any former employees getting a competitive advantage through unlawful activities such as these.
Or to stop someone from making what you consider to be untrue and damaging remarks about your business or its management.
Or to prevent another party to a dispute dissipating assets to put them outside of the reach of later enforcement proceedings.
It's key to remember that an injunction isn’t something that you just apply for on its own – there has to be an underlying claim that you are either already pursuing, or that you are ready to commence as soon as possible. Even then, the courts don’t grant them in all cases. Expect to have to show that an injunction is necessary because no other remedy is adequate.
Injunctions are a powerful remedy, but they can be expensive to obtain, and they inevitably start you down a track of needing to engage in even more legal action at further expense, once you’ve been granted one. So, they are not a lever to be pulled lightly. But when you do need them, they provide immediate benefits that usually cannot be matched by any other lawful method of damage prevention.
It’s always wise to take expert advice if you find yourself in a situation where an injunction is an option you want to pursue. Our Speak To A Lawyer service is designed to help with exactly this kind of situation. You can rapidly get an expert view that will help you decide if it’s something to which you want to commit the money and effort – and importantly whether your prospects of succeeding appear reasonable.
It’s very important that you’re confident in your need for an injunction before you apply for one. And that’s why we recommend taking advice. Because if the court considers that your request was unnecessary or aggressive without good reason, it may order you to pay compensation to your opponent, and that may also set an unhelpful tone for how your arguments are subsequently considered.
How to apply
When applying for an injunction, you must have evidence of a valid claim – for example, documents and witness statements showing that someone is going to (or has) invaded your legal or reasonable rights, or that someone is going to (or has) behaved in a significantly inacceptable manner. These are complicated and contentious applications, that are closely scrutinised by the courts. Give yourself the best prospects by taking advice on what to include in the evidence that you put forward, including what any witness statements should contain and how they should be formatted.
You then can apply by sending an application notice, a draft of the order you are seeking, and your supporting evidence explaining what order you’re seeking and why you’re seeking it.
Injunctions hearings are usually given with quite short notice, so be ready as early as possible to present your case to court.
If an interim injunction has been made without notice to the other side, you will be asked to give your evidence to the court. You must give ‘full and frank disclosure’ of your evidence in the matter – including anything that works in the other party’s favour.
If you fail to disclose something that the other party could rely on, the injunction could be withdrawn – even if you have strong evidence of why it should be made permanent.
Then, the court will make arrangements to hear from both you and the other party to determine whether the injunction should be made permanent in your favour – unless by then, you have both managed to settle matters out of court, in which case, the agreement will set out what should happen to the injunction as well as the other terms
What happens once an injunction has been granted?
At the hearing the court will direct what should happen next, which depends on the circumstances of your case. There might need to be further hearings, or evidence filed by one or both parties.
Injunction applications are often fast moving, and frenetic. The best advice is to be ready for anything.
You will want to ensure the injunction is complied with. If not, you can make an application back to the court – this can include an order for committal to prison in the most serious cases.
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