What is an injunction? A comprehensive guide to injunction orders

Injunctions can be an important tactical tool to prevent harm, protect legal rights or restrain an ongoing breach of duty. They are typically urgent remedies that are only awarded at the discretion of the Court. In this article, our experts explain what an injunction is, what it can be used for and how to go about getting one.

What is an injunction?

An injunction is an order issued by a court which requires a business or individual either to do something (a “mandatory” injunction) or to stop doing something (a “prohibitory” injunction). Injunctions are used to protect legal rights, particularly in urgent situations where finding a fast resolution to a dispute is important.

An injunction can be issued on either an interim (or interlocutory) basis or a final (or perpetual) basis.

Interim injunctions are issued before or during legal proceedings as a holding measure while a court considers a claim. Final injunctions are issued at the conclusion of a trial and can remain in place indefinitely.

Types of injunction

Injunctions can be used in a wide variety of scenarios. As such, there are a number of different types of injunction that serve a specific function.  Examples of specific types of injunction include the following:

Freezing orders

Freezing orders prevent a party from disposing of any assets, such as bank accounts, property, shares, etc. These orders are usually issued to ensure that funds are preserved and available to satisfy an anticipated Judgment against the party in due course.

Search orders

Search orders grant permission for representatives of the applicant to enter the defendant’s premises to conduct a search for evidence. A search order might be granted if a judge has reason to believe that the defendant will otherwise hide, destroy or fail to disclose evidence.

Springboard injunctions

A springboard injunction prevents a party from gaining a competitive advantage due to previous unlawful conduct. For example, an employer might bring an application for a springboard injunction against a former employee who downloaded client lists before setting up on their own.

Persons unknown injunctions

Persons unknown injunctions are used where it is necessary to order an injunction against unknown persons. They are often used to prevent unauthorised occupation of land or online harassment.  However, more recently, they have been deployed in the context of protecting documents which have been misappropriated by cyber criminals following a cyber-attack. 

Privacy and publication injunctions

Privacy and publication injunctions prevent private or confidential information from being disclosed. They are often used by public figures to prevent information about their private lives from being published.

Proprietary injunctions

Proprietary injunctions are often used in fraud cases and prevent the defendant from dealing with assets which belong to the claimant.

Quia timet (precautionary) injunctions

Quia timet (or precautionary) injunctions can be brought in anticipation of a breach of legal rights but before that breach has occurred. To grant such an injunction, the judge will need to be convinced that there is a real and imminent risk of the applicant’s rights being breached.

What is a super injunction?

A “super injunction” is essentially a privacy injunction, but with added protection. What distinguishes it from a privacy injunction is that not only does it prevent private or confidential information from being disclosed, but it also prevents anyone from publishing or otherwise informing others about the existence of the injunction.

The process for obtaining an injunction

To obtain an injunction, you will need to follow the process set out below. There is however a high bar to obtaining an injunction, so it’s important that you take professional advice from the outset.

1. Take legal advice

Before proceeding with your claim, you should take advice from an expert in injunctions who will be able to advise you on whether you have a valid claim. Our injunction solicitors will be happy to advise you.

2. Prepare your application and evidence

It is important to act quickly when seeking an injunction, since excessive delay can prejudice an injunction application.  However, it is equally as important to prepare the application properly, together with the supporting evidence.  That evidence will need to explain how your case meets the necessary test to obtain an interim injunction.

3. Issue the application

An application for an injunction is made to the court that will deal with the wider claim. It is important to understand that it is not possible to apply for an injunction in isolation. You will also need to commence legal proceedings in parallel. 

4. Decide whether to give notice

When making the application, you have the option to do so either with or without giving notice to the other party. If the other party is provided with notice, they will have the opportunity to attend the hearing. In the application is without notice, an initial hearing will take place without the defendant in attendance.

This is strategic decision which will depend on a number of factors, including whether an “on notice” application will tip off the defendant and defeat the purpose of the injunction (for example, in a freezing injunction scenario, prior notice of the hearing may provide the defendant with an opportunity to dissipate their assets before the order is made).

Without notice applications are usually reserved for the most urgent cases and the obligations on an applicant are strict. This includes a duty to provide “full and frank” disclosure, which means that the applicant must present all the material facts, even if they support the position of the other party.

5. Attend the hearing

The hearing will take place and the judge will consider the evidence and the submissions made, following which they will decide whether to grant the injunction.

If granted, the applicant will usually be required to provide a cross-undertaking in damages. This is a binding agreement to pay the other party damages if the court later decides that the injunction should not have been granted.

6. Serve and enforce the injunction

Once you have been granted an injunction, you will need to formally serve it on the other party before it takes effect.

If the other party does not comply with the injunction, you will then need to take further advice on your enforcement options.

7. Return hearing

If the injunction was granted on a “without notice” basis, a further hearing will need to take place (a return hearing), at which the defendant will be given the opportunity to attend and to argue against the continuation of the injunction.

What does the court consider when granting an injunction?

The court considers injunctions to be a serious measure and, as such, there are several stringent legal principles that must be met before a judge will consider granting one:

• The application must have been brought without unreasonable delay.

• The applicant must demonstrate that they have a valid legal claim and that their legal rights have been breached or are at real risk of being breached.

• The court must be satisfied that there is a serious legal issue to be tried, as opposed to a frivolous or vexatious claim.

• The applicant must have acted properly and fairly throughout the dispute to date.

• The harm suffered (or likely to be suffered) by the applicant must be such that damages would not be an adequate remedy.

• The judge will look at the balance of harm to both parties, and whether the applicant will suffer more harm if the injunction is not granted than the respondent would suffer if it is granted.

Consequences of breaching an injunction

Breaching an injunction is considered contempt of court and can have serious consequences. When a judge issues an injunction, it is often accompanied by a penal notice which gives formal warning that breaching the injunction may lead to imprisonment, a fine or the seizure of the breaching party’s assets.