Here is our guide to the common types of injunction and what they can be used for

Guide
Published: 7th February 2022
Area: Litigation & Dispute Resolution

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What is an injunction?

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.

What are the types of injunction?

Common types of injunction include:

  • Freezing orders.
  • Search orders.
  • Springboard Injunctions.

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.

Freezing orders (freezing injunctions)

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:

  1. the applicant must have a cause of action, justiciable in England and Wales;
  2. the applicant must have a good arguable case on the merits; and
  3. there must be a real risk of the respondent's assets being dissipated.

What can a freezing order be applied to?

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.

Search orders

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.

Springboard injunctions

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:

  • That there has been unlawful behaviour by the subject of the injunction;
  • That an unfair competitive advantage has been obtained;
  • That the nature and period of the competitive advantage justifies the court intervening;
  • That the advantage still exists at the date when the springboard injunction is sought and will continue unless the relief is granted.

Each specific injunction has a number of special requirements BUT there are some key guiding principles that should be considered:

  • If you are concerned about something and that there might be urgency seek advice immediately. Injunctions are always time critical. If you do not act and seek advice it can either be too late practically, because assets can have been disposed of or destroyed; or it can be too late legally. Act now or you may miss the chance
  • If you are applying for an injunction, in a commercial case, an applicant for an interim injunction must typically undertake to pay the respondent whatever the court may later order by way of compensation, if it is later held that the interim injunction was wrongly granted.
  • Whether to grant an injunction will usually depend upon whether it would be "just and convenient" to do so.
  • The balance of convenience is very often the determining factor and there is a three-part test:
    • Would damages be an adequate remedy were the applicant to succeed at trial?
      • If yes then an interim injunction will not usually be granted.
      • If no, then would the applicant's cross-undertaking in damages provide adequate protection for the respondent if, on final determination, it transpires that the interim injunction should never have been granted?

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

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