6.1 Introduction

This review of injunction powers and procedure is of necessity fairly brief. The detailed principles and the supporting authorities are fully set out in chapter 45 of the 30th edition of Snell’s Equity, published in 2000. It contains almost all the up to date authorities (other than in respect of specialist jurisdictions). Domestic violence proceedings are dealt with at paragraphs 6.25 et seq of this chapter. Proceedings under the Housing Acts are dealt with in Chapter 14, paragraphs 14.54 et seq.

Most judges sitting in the county court will have had some professional experience of injunctions. But there will be a few, for example those with exclusively PI practices, who may not have done. For their benefit alone it is useful to restate the basic principles.

6.2 The nature of an injunction

The media often use expressions such as ‘X has taken out an injunction against the Daily Tabloid’ as if an injunction could be obtained off a shelf on demand. It cannot be stressed too often that an injunction is in all cases the product of a judicial decision applying established principles in the exercise of a judicial discretion. Although there are many cases where the grant of an injunction would be ‘usual’ or ‘expected’ it can never be regarded as a certainty or a formality.

The essential nature of an injunction is an order against a legal person (usually a party to the proceedings) directing them to do or not to do a specified act or acts. It is enforceable against the person to whom it is directed, in the case of individuals by imprisonment and in the case of corporate bodies by attachment of their possessions.

An undertaking is often used as an alternative to an injunction. It is closely similar, the difference being that the relevant party promises the court to do or abstain from doing a specified act or acts instead of being ordered to do so by the court. It can therefore only be done consensually. It is enforceable in exactly the same way as an injunction, except that in certain statutory procedures a power of arrest attaches only to an injunction and not to an undertaking.

An injunction must support a legal or equitable right capable of remedy.

6.3 Basic Definitions

Throughout this section, for convenience, the word ‘applicant’ is used to describe the person seeking the injunction and the word ‘respondent’ to describe the person against whom it is sought. Although injunctions are perhaps more usually sought by claimants against defendants, this is not inevitably the case; a counterclaiming defendant may quite frequently turn out to be the applicant.

In accordance with post-CPR practice, Latin tags and expressions have as far as possible been avoided (or translated into an English equivalent). The one exception is the expression ‘status quo’ which seems to the writer to be virtually part of the English language now and has no good brief English equivalent.

Injunctions can be granted in a wide variety of situations, in the Common Law and Equity jurisdictions of the court, e.g. to restrain a breach of contract, to restrain the commission of a tort, or to restrain the disposal of disputed property. Similar principles apply to all these types of case.

6.4 Interim (formerly ‘interlocutory’) injunctions

The purpose of these is to stop the defendant from doing something that the claimant claims is an infringement of the claimant’s rights, until there can be a trial. Consequently a court granting such an injunction has to be aware that:

a)      the defendant may so far have done nothing at all; the claimant is expressing fear that if not stopped the defendant will do something in the future (hence the old Latin label of quia timet - because he fears);

b)      the defendant may well have a perfect right to do what he is threatening to do and the grant of an injunction may turn out (once there has been a trial) to have quite unjustly stopped him from doing something lawful (or in the rare case of a mandatory injunction) have forced him to do something he was not obliged to do.

These important factors impact critically on the principles affecting the grant or refusal of an interim injunction, discussed in detail below. An interim injunction is made over a defined period; sometimes only until there can be a full hearing of the application, often until judgement is given in the case.

6.5 Injunctions on notice and not on notice

These expressions replaced the hallowed Latin expressions of inter partes and ex parte. At the stage when the application is fully considered, an application for an interim injunction has to be on notice either for the full three day period required by CPR 23.7 (and see also PD 25.2) or a shorter period fixed by the court (see also CPR 23.7). But very urgent applications have sometimes to be brought without notice, or at least without the full notice required by the rules. For reasons which appear below, it is now fairly common practice to give some form of notice even for an application which is technically without notice, thereby producing the odd hybrid of an application without notice, on notice.

6.6 Final injunctions

A final injunction is made after the trial of the case. Often it is in the form of a ‘perpetual’ injunction, i.e. without any limit of time, for example the defendant is prohibited from ever entering the claimant’s garden again.

6.7 Prohibitory/negative injunctions

The vast majority of injunctions are negative. Put simply, these are orders which can be complied with by the respondent doing nothing at all. So long as he refrains from doing the act which is prohibited, he is safe. If a claimant establishes his rights at trial, he will usually obtain a negative injunction with little difficulty.

6.8 Positive/mandatory injunctions

A mandatory injunction is an order that can only be complied with by the respondent doing what the court tells him he must do, for example to pull down a wall or restore some item of property. Sometimes it can quite closely resemble an order for specific performance and rather similar principles apply in deciding whether or not to grant such an order. A mandatory injunction is not commonly granted by way of interim injunction. Even after trial its grant is always discretionary, though on well settled principles.

6.9 Statutory jurisdictions

Many of the basic definitions and principles set out above apply in statutory jurisdictions as well. There are, however, a number of detailed differences. In particular, injunctions in domestic violence and Housing Act cases, although procedurally resembling interim injunctions, have in some ways more the character of final injunctions. Under Part IV of the Family Law Act 1996, the court may grant free-standing relief in the form of an order restraining the use and threat of violence, and acts of molestation. There is no requirement for there to be a substantive claim as there would be if a remedy were sought in tort. As a result, once the order is made the matter is disposed of and there is no requirement for a further, or ‘final’ hearing.

6.10 Injunctions which the county court rarely or never grants

Immediately following the coming into force of the homeless persons provisions of the Housing Act 1996, county courts were often asked to order Local Authorities by way of injunction to provide interim housing for applicants until their appeals from reviews had been decided. It is now firmly established in the Court of Appeal that there is no jurisdiction to grant such an injunction. Any such proceeding must proceed by way of judicial review, if at all (see Ali v Westminster City Council [1999] 1 WLR 384).

The county court can only make a freezing order (formerly called a Mareva injunction) in the following circumstances (see County Court Remedies Regulations 1991):

c)      in support of a judgement of the court (considered further below);

d)      to preserve property which forms the subject matter of the proceedings;

e)      In the Central London County Court Business List;

f)        In the Patents County Court.

As to 3. and 4., which are not discussed below, any judge sitting in those jurisdictions is unlikely to need much help from this book. The only county court that can make a search order (formerly called an Anton Piller order) is the Patents County Court. Accordingly, this chapter does not deal with a search order.

6.11 Powers of the County Court

Section 38 of the County Courts Act 1984 has allowed courts to avoid many of the problems that existed before 1990 in establishing whether or not the court could grant an injunction in a case otherwise within its jurisdiction. (That, incidentally, often depended on whether there was a claim for damages to which the injunction was ancillary.) Subject to immaterial exceptions, it gives the county court the same powers as the High Court in such cases (but see the comments in paragraph 6.10 about freezing and search orders). It must of course be remembered that the county court is the creation of statute and has no inherent jurisdiction. If no statutory authority for the injunction can be discovered, the court has no jurisdiction.

6.12 Powers of particular judges

A circuit judge (and therefore a recorder or a deputy circuit judge) can make any order that the court has power to make. A district judge has power to grant an injunction in any action where he has jurisdiction to conduct the trial (see PD 25 1.3)

6.13 The Interim Injunction

6.13.1 Without notice

All the main principles that apply to the grant of interim injunctions (see below) apply with even greater force where the application is made without notice. But the following matters are also of great importance.

a)      The court will only know those facts which the applicant chooses to tell it. So the applicant’s lawyers have a particular duty of disclosure and candour. If they turn out to have failed in that duty then (at whatever stage this emerges) they may well lose their right to obtain the injunction they would otherwise have obtained or may, if appropriate, be penalised in costs. Of course such failure of candour must be substantial. The habit of some advocates of pointing to minute errors of detail as indicating a lack of candour needs to be discouraged.

b)      Now the Human Rights Act 1998 is in force it will be particularly difficult to obtain an order wholly without notice in a case involving freedom of expression unless the requirements of section 12 can be satisfied. Apart from that, however, an application wholly without notice will rarely succeed unless it is obvious that either it is impractical to give notice however short or that the giving of notice would precipitate the commission of the act which the claimant fears - for example, if the claimant wishes to restrain the cutting down of disputed trees and gives notice, the defendant may at once send for the men with the buzz saws.

c)      To obtain an order on such an application there must in any case be a real urgency which will not wait for proper notice. In general the order should only be granted to protect against immediate danger of serious injury or irreparable harm, see Beese v Woodhouse [1970] 1 All ER 769.Often it will be sufficient to shorten the period of notice and use the application to fix an early return date.

d)      If the court comes to the conclusion that an order is necessary, then it is desirable to make the least devastating order over the shortest period.

e)      As the court will not (unless the respondent turns up) have heard anything about the respondent’s case, the less the court comments on the merits the better (unless of course the applicant’s case is demonstrably weak itself).

Before the issue of proceedings, the court has power in an appropriate case to make an injunction before the issue of proceedings (see generally CPR 25.2). The old practice was to require an undertaking to issue and serve as soon as practicable, and this remains appropriate under CPR 25.2 (3).

6.13.2 With notice

It is this kind of application for an injunction that is the most commonly met with.

a)      The rules only require three days’ notice. If that is all the notice the respondent has, it is highly probable that he will not be ready for the hearing but needs time to consider and serve evidence. Inexperienced (or aggressive) advocates sometimes take the line that as the rules only require three days notice, the case ought somehow to be ready on the respondent’s side. This is hardly ever a reasonable view. Generally speaking, if a respondent needs time to serve evidence then he should have it. How long he needs will depend on the individual case, but one would normally allow at least seven days, if not longer. Frequently such an adjournment is agreed. If there is to be a sequential exchange of evidence it is a good thing to set up a case management timetable.

b)      Apart from statutory cases (where the hearing of the injunction may well be the trial of the case) it is not usual or desirable to admit oral evidence, and in particular cross examination. Most hearings proceed simply on the paper evidence.

c)      If there is to be an adjournment for evidence ,the status quo often needs to be protected in the meantime. Frequently undertakings are offered and accepted (though the court needs to consider whether the form of the undertaking is acceptable and that the individual giving the undertaking knows what they are doing - see further below). If no undertaking is offered then the applicant may have to apply for a very temporary order on a without notice basis, in effect on the basis of his own evidence alone. The court will hear the respondent as well if the respondent wishes.

d)      An interim injunction is generally granted over the trial of the case or further order. It is important that the injunction is formulated so that it is until ‘judgment in the case’ rather than ‘until trial’. If, for instance, the injunction is to prevent trees being cut down and is made only until trial, there is nothing to stop some quick action with the chain saws while the trial is proceeding.

e)      Because an interim injunction is only a temporary remedy a party can always apply, if for instance circumstances change, to discharge or vary the order. It is for this reason that the injunction will be expressed as ‘until further order’.

f)        At the heart of interim injunction practice lie the principles set out by the House of Lords (notably in the speech of Lord Diplock) in American Cyanamid v Ethicon [1975] AC (‘Cyanamid’). Although the principles have been eroded in later decisions (one of the editors of this book having gone so far as to suggest in a lecture that Cyanamid was dead), they are believed still to be important and should be present to the court’s mind at all times. Counsel still frequently bring a copy of Cyanamid with them to Court. It must however be remembered that the principles are guidelines not rules (see Cayne v Global Natural Resources [1984] 1 All ER 225,237). more detailed examination of the Cyanamid case are set out in paragraph 6.13.3, below.

g)      There are important exceptions to Cyanamid which have been developed in subsequent cases, interestingly mostly in the Court of Appeal and not the House of Lords. Important ones include:

A ‘serious issue to be tried’ means what it says. So it follows that the applicant still has to have an arguable case. It is therefore legitimate for the court to consider whether the applicant’s case as presented on the papers stands no chance of success (see, among others, Associated British Ports v TGWU [1989] 1 WLR 939).

 

It is legitimate to consider whether the case can be decided on a short and simple issue of law or construction. If the papers show that all the relevant facts are before the court, the court may be able to reach the conclusion that, assuming all disputed facts in the applicant’s favour, the applicant’s case fails in law. In which case, the court should say so rather than make an injunction and leave the issue to be tried at some future date (see Associated British Ports). This may be thought to be in accordance with the overriding objective. It is otherwise if the issues of law call for detailed argument and ‘mature consideration’ (see Cyanamid).
There are cases which in reality will not wait for a trial or where a trial will not take place, so that the only practical issue is whether the interim injunction will or will not be made and the grant/withholding of the injunction will put an end to the litigation. Examples are particularly plentiful in the labour dispute/employment/restraint of trade field. One example would be where the respondent has a job offer starting on Monday next which the applicant says he cannot accept because he will be in breach of covenant. It is unlikely that the offer will remain open while a trial is arranged. There is heavy pressure on the court to determine the issue (see Cayne v Global Natural Resources)
Irrespective of Cyanamid delay, acquiescence/misconduct (including lack of candour on an application without notice) may deprive the applicant of his injunction.

• although in the past it was not usual to consider the adequacy of the cross undertaking, today it is increasingly common to do so especially where the damages might be large;
• not every injunction will lead to substantial loss, in particular injunctions restraining objectionable personal conduct would be quite inappropriate for a substantial (or probably any) cross undertaking;
• the cross undertaking needs to be written into the order in all cases.

6.13.3 Cyanamid principles The basic principles are these: a) So far as the merits are concerned, the court is only required to consider whether there is a serious issue to be tried. It is no longer necessary to follow the (pre-1975) practice of considering whether the applicant has a strong case on the face of it.

b) If the court is satisfied as to 1., it needs to consider is the ‘balance of convenience’. This rather odd and in some ways inaccurate phrase may be better expressed (as suggested by Sir Robert Megarry V-C) as ‘the greater or lesser risk of doing an injustice’. The basic considerations may be thought to be these: at the interim injunction stage nobody can say whether the applicant will obtain an injunction at trial. If in fact he fails, then the respondent will have been inhibited from doing something he wishes to do and is entitled to do for months or possibly years.        

The court therefore needs to consider:

(1)   how great /irreparable a harm will the applicant suffer if the injunction is not granted and the respondent is left to do what he wants until trial?

(2)   a similar question in respect of the respondent - what will he suffer if he is inhibited until trial?

(3)   when might the trial be expected to take place - can an effective order for an early trial be made?

(4)   can the potential damage to applicant/respondent be sufficiently compensated in money? Is this practical in terms of the money available (see below as to undertakings in damages)?

(5)   if the injunction is refused and, for example, the respondent is allowed to go on and build his house on what turns out to be the applicant’s land, will the court at trial make a mandatory injunction to pull it down?

(6)   are there special factors in the individual case ?

(7)   are the cases of the parties widely disproportionate in strength ?

(8)   where the cases are evenly balanced, is there pressure in favour of preserving the status quo? This list is not exhaustive. By way of further comment and example:

a) B threatens to chop down trees which A claims are his. They are fine and irreplaceable specimen trees and no money will properly compensate for their loss. Stopping them being chopped down for six months until there can be a trial will mean that B cannot build the extension to his house that he wants to build. Delay in doing this will cost B £20,000. There is evidence that A can afford the £20,000. The injunction will probably be granted.
b) Same basic facts as above. But the trees are ‘bog standard’ Leylandii nearing the end of their useful life. The evidence is that they can easily be replaced by half grown specimens which will cost a sum which B can afford. A cannot afford the £20,000 which B will lose if an injunction is granted and should not have been .If they are chopped down B will not be building over where they stood and the site can (if A is right) be restored to A. Probably, though not certainly, an injunction would be refused.
c) See Wrotham Park v Parkside [1974] 1 WLR 798 for an interesting example of what can happen where an interim injunction is not sought (none was sought in that case) or not granted and the successful claimant seeks a mandatory injunction to pull down houses built in breach of covenant.



6.14 Mandatory Interim Injunctions

Although what has been said in the second point above can apply equally to a mandatory injunction as to a negative one, mandatory interim injunctions (other than in specialist/statutory jurisdictions) are rare and special considerations apply to them. In general, the policy behind an interim injunction is to preserve things as they are until there can be a trial, rather than to change them. The general rule is that the court will not make an order that makes such a change. But there are a few important exceptions.

a) Where the act to be done is a simple and straightforward one, the case is strong and the balance of convenience tilts heavily in favour of the applicant. Also it may be appropriate to make an order where a defendant has hurried on with building work while the application is being made. Another common example in the county court is where a tenant has been wrongly excluded from his home. See generally Halsbury’s Laws, Volume 24 paragraph 848.

b) Cases where (as above) the injunction effectively disposes of the cases and the issue can be determined on a summary application. This has an affinity in principle with both summary judgment and orders for the summary return of converted goods. The classic example (in the High Court anyway) is where the respondent has registered a caution against the claimant’s title which has no justification (see Heywood v BDC [1963] 1WLR 175).



6.15 Conditions

The court frequently imposes conditions on the grant of an interim injunction. The most common and familiar is the ‘cross undertaking in damages’ by the applicant. This is an undertaking that if at trial it turns out that the injunction should not have been granted, and as a result the respondent has suffered damage because of the injunction, the applicant will pay for that damage (generally dealt with by an inquiry directed by the trial judge). In deciding whether to accept an undertaking in damages (and therefore whether to grant the injunction) the court will consider the means of the applicant which, in modern practice, ought to be in evidence. For more detail see Snell 45-45.

6.16 Costs in applications for interim injunctions

It has to be remembered that although an application for an interim injunction has been bitterly fought, the court has (except in the plainest of cases) no idea who will ultimately prove to be right. It will often therefore be inappropriate to make an order for costs that fixes the liability for the costs of the application on the ‘loser’. The historic Chancery practice (generally followed elsewhere) was as follows.

a) Costs in the cause (now case).In cases where the issues are fairly finely balanced or where in practical terms it was necessary and of use to both sides to bring the matter before the court.
b) Claimant’s costs in the case, i.e. that even if the claimant loses the case he will not have to pay the defendant’s costs of the application. This and its mirror image ‘defendant’s costs in the case’ are the most common and are appropriate where one party has plainly won the application and the other plainly lost, but the trial could have gone either way.
c) Defendant’s costs in the case, see 2. above.
d) Claimant’s/defendant’s costs in any event. This is appropriate where either the application should never have been resisted or never been brought and is clearly the appropriate order where the case is obvious and there is unlikely to be a trial.

It is not thought that the post-CPR practice has rendered these principles invalid or inappropriate. The principal change made by the CPR is likely to be to 4. In the old practice there was a clear distinction between that kind of order and an order that the costs be taxed and paid forthwith (generally an order made by way of deterrent and expressing the court’s disapproval). The general CPR practice of requiring interim costs orders to be assessed and paid as the case proceeds should lead to almost all ‘in any event’ orders being dealt with that way, so that there will be no need for the old draconian alternative.



6.17 The final injunction

6.17.1 Final negative injunctions

These cause comparatively few problems. Attention is drawn to the following:

a) An injunction to enforce a negative contractual obligation will hardly ever be refused (see Doherty v Allman [1878] 3 AC709).
b)It is unusual to refuse an injunction to restrain a threatened or continuing wrong unless damages would be an adequate remedy or one of the following circumstances applies.
c) The annoyance has ceased.
d) Compliance would be difficult.
e) The order would be ineffective.
f) The defendant offers an undertaking.
g) The order is unnecessary.
h) The claimant has misconducted himself.
i)The claimant has been guilty of laches (lapse of time) or acquiescence.

6.17.2 Final mandatory injunctions

A mandatory injunction is always discretionary, not least because in practical terms a party may not be able to comply and the court will avoid making an order which cannot be effectively enforced (there is no point threatening to send somebody to jail for not doing what he cannot do). All the discretionary matters referred to above in relation to negative injunctions apply to mandatory injunctions, but in addition the following (not necessarily exhaustive) list sets out some common reasons for refusing a mandatory injunction.

a) Damages are an adequate remedy.
b) There is only small damage to the claimant.
c) Compliance would involve a high cost to the defendant.
d)The order would require the execution of successive operations requiring superintendence by the court (similar considerations apply in specific performance). The following may weigh in favour of granting a mandatory injunction.

a) The defendant has rushed on with the works following the claimant’s objection.

b) A restrictive covenant has been broken knowingly and after notice from the claimant.