Updated: 4th May 2023
Updated: 4th May 2023
An injunction is a court order, which either requires something to be done (a mandatory injunction) or prohibiting someone from doing something (a prohibitory injunction). They are in many ways the strictest court order, because they are usually accompanied by a penal notice. In short, that means, if someone breaches the injunction they can be imprisoned.
Injunctions are usually an “interim injunction”. That means they are in effect to maintain the status quo and protect assets, evidence or other materials that are important to the final determination of a claim. This brief basic guide gives some key points about injunctions, such as freezing injunctions or springboard injunctions.
Common types of injunction include:
Injunctions are not limited to these however, nor are they to be seen in isolation. Often will something else from the court will be applied for at the same time, for example an order such as a Norwich Pharmacal Order* to disclose certain information.
A freezing order (sometimes referred to as a freezing injunction) is an interim injunction granted by the court restraining a party (the respondent) from disposing or dealing with assets. It can apply to both individuals and businesses.
A freezing order is discretionary and a court will exercise that discussion if the following tests can be met:
Almost any asset can be frozen subject to meeting the tests. Commonly an order will cover things such as bank accounts, valuable machinery or vehicles or other valuable item. A freezing order is to prevent assets being dissipated; or in simple terms the freezing order is so that, in the event that the defendant needs to satisfy a court order following trial, the defendant has the funds to satisfy that very court order.
A search order / injunction requires a defendant to allow the claimant’s representatives to enter premises and search for, copy, remove and detain documents, information or material. The key purpose of such an injunction is to preserve documents or materials that will constitute evidence in a claim to be determined later.
Invariably an independent solicitor (not associated with the case) will be appointed by the court to supervise the search and ensure that it is conducted fairly.
This is an injunction to deprive a party of the benefit of an ongoing unfair competitive advantage obtained as a result of earlier unlawful conduct.
Commonly these have been used against former employees / contractors who have unlawfully taken confidential information from a business; however their use has grown in recent years to include breaches of fiduciary duties or breach of duties of fidelity.
Although it may seem to reverse matters in fact this again is to preserve the status quo – how matters would be if confidential information for example had not been taken and used. The test for a springboard injunction are:
Each specific injunction has a number of special requirements BUT there are some key guiding principles that should be considered:
If no, that suggests interim relief will not be granted.
Injunctions are powerful weapons, and require expert assistance. If you are considering an injunction, or simply think you might have an urgent situation act and enquire immediately.
* A Norwich Pharmacal Order (NPO) is an order which compels an innocent third party to provide information about another party who may have been mixed up in “wrongdoing
The second half of 2021 saw a number of applications for patent trials to be expedited – in other words, to get a trial heard sooner than would normally be the case. This, and more particularly securing the injunctions that typically follow a successful outcome, are normally matters that a patent owner is keen to know about at the outset. Particularly with patent litigation, there can be an interplay between proceedings in other jurisdictions, including the European Patent Office (EPO), which can mean a party may wish to speed up (or slow down) litigation in one forum pending the outcome in another.
In the UK, the goal has been to have a period of not more than 12 months to trial from the time proceedings are issued. Even if the average is in fact a little longer, it remains the case that resolution in the UK still is relatively quick when compared to many other jurisdictions. So given this, the answer to the question as to why there has been a spate of applications for expedition is not obvious. No doubt it is a combination of various factors, including the fairly full state of the court lists of cases waiting to be heard, and possible COVID backlog, although as to the latter many cases have been heard satisfactorily through the pandemic, which reflects well on our court system.
One reason for such applications to the UK courts which is clear is parties reacting to the so called “injunction gap” that can arise in German patent litigation. This ‘gap’ in time arises between the granting of an injunction by a German regional court, and the hearing as to the validity of the patent in question by the German federal court and arises because of the split nature of patent litigation in Germany. This position can be compounded further by the fact that under German law, a revocation action may not be commenced until opposition at the EPO, including any appeal to the Technical Board of Appeal (TBA), has been determined. It is quite possible that a lot of commercial damage could be inflicted during this ‘gap’, even if the patent is subsequently revoked.
Typically, once an alleged infringer realises he is about to be served with infringement proceedings in a regional court, he might seek to revoke the equivalent EP(UK) before the conclusion of said infringement proceedings with a view to influencing the German court in the event of a UK finding of revocation, or at least hope to put sufficient doubt in the mind of the judge of the regional court, such that an injunction might be avoided.
Three recent decisions have been given by one of the recently appointed patents judges, Mellor J, when this issue has been to the fore;
It can be seen that the 2nd to 4th factors are typically balanced against the 1st.
The above mentioned “available procedures” following a regional court finding of infringement include requesting a stay of the injunction pending Opposition or Federal Court decision and asking the Patentee to put up security, in a manner similar to the cross undertaking in damages required in the UK. However, it is important to note that this security is not as wide ranging and comprehensive as the cross undertaking, so it may well suit a claimant to put up such security as the commercial advantage may be greater. Reform of German law in this respect is pending. However, notwithstanding these observations, the judge went on to say “This brings me back to the point made consistently in the caselaw – a desire to schedule a UK action in such a way that the outcome relating to validity is likely to be available and public before the German infringement court decides the matter is a factor to be taken into account but is not a strong factor and cannot justify expedition on its own… The UK court is not here to police European patents across Europe which may be perceived to be weak and may ultimately be proved to be invalid.” [highlighting added]. Applying the principles, expedition was not granted. Nevertheless, it remains the case that it is entirely legitimate to bring a revocation action in the UK, and it is part of the role of the UK courts to hear such actions – the issue is rather whether such actions should be accelerated in the particular circumstances of each case.
¹ [2021] EWHC 2198
² [2021] EWHC 2246
³ [2021] EWHC 2415
⁴ [2008] EWCA Civ 622
⁵ [2020] EWHC 1594
⁶ In a decision given very recently on the 24 January 2022, the High Court rejected said estoppel arguments.
The courts usually strike a fair balance between these rights by restoring possession of occupied premises to the institution where trespassing students have alternative means of exercising their rights of assembly and/or expression that are less intrusive of the institution’s own rights. It is rare that the only means by which a protest can be made is by occupying the particular location chosen by the protesting students.
The rights of institutions as landowners are also capable of protection in the context of very disruptive student protests by the courts granting injunctions against unknown persons in order to prevent further protests, where it is not possible to name the potential protesters/occupiers. Some of our clients have had the benefit of injunctions of this kind. A recent judgment by the Court of Appeal, however, seeks to limit the circumstances in which such injunctions may be granted in future (Boyd & Anor v Ineos Upstream Ltd & Ors ([2019] EWCA Civ 515)).
Injunctions against unknown persons in the above case were applied to protect Ineos from the perceived risk of anti-fracking demonstrations becoming unlawful protests at various sites owned by Ineos. The Court of Appeal counselled caution before granting injunctions against unknown persons “since the reach of such an injunction is necessarily difficult to assess in advance” (par 31).
Injunctions against persons unknown operate against the generality of the population until they are breached by individuals. The Court of Appeal was clearly concerned that individuals would be deterred from engaging in perfectly lawful protest for fear of breaching the injunction. The injunction therefore could have a “chilling effect” on the exercise of the rights to freedom of expression and lawful assembly.
The Court of Appeal also acknowledged that it was not easy to formulate broad principles on which such an injunction could properly be granted. It did however tentatively set out a number of requirements that would need to be met to warrant one, as follows:
Commentators have construed this case as a significant restriction on landowners’ ability to protect their interests before any harm has occurred. Though it is important to note that the judgment does not absolutely rule out injunctions against persons unknown, their scope has been narrowed in deference to the exercise of rights to freedom of expression and lawful assembly. The challenge posed is to those who draft the order to identify with precision the potential conduct that poses a threat to the landowner and to seek clear restraint that is the minimum necessary to manage that risk.
Daniel also has wide experience in corporate litigation handling claims by or against shareholders and directors, across owner managed businesses, SMEs to plcs, in claims ranging in value from thousands to over £200m. His experience has secured excellent results for clients.
Nick heads up our Commercial and Intellectual Property teams, they are committed to offering their UK and international clients innovative and practical advice.
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