The world of injunctions is a tricky one. There are various types, which include:
- Prohibitory injunctions;
- Mandatory injunctions; and
- Freezing injunctions
We have looked at injunctions in more detail in a previous article. In this article, we will focus primarily on prohibitory injunctions.
What is a prohibitory injunction?
A prohibitory injunction is a court order which prevents someone from carrying out a particular act. Some examples of uses of prohibitory injunctions are: to prevent someone using confidential information; prevent a breach of restrictive covenant; or prevent the sale of property.
This type of injunction is very serious and the application must meet certain criteria for the court to order one. These are:
- The application must be brought in the court where the main proceedings to the case have been brought or will be brought. You cannot apply for a prohibitory injunction on its own; it must be as part of a claim.
- It must only be used where no other remedy is available or suitable.
- The applicant has a duty to give full and frank disclosure.
- The court usually requires the applicant to give a cross-undertaking in damages.
What will the court look at?
The court will look at specific issues when deciding whether to grant a prohibitory injunction. These are:
- Is there a serious question to be tried?
The claim must not be one which is vexatious or frivolous. The applicant has to show the court that his claim has merit.
Would damages be an adequate remedy?
If damages would be enough to compensate the applicant, the court will not grant an injunction. The court will only grant a prohibitory injunction where the payment of damages would not be enough to resolve the matter
How does the application affect the status quo between the parties?
This is often referred to as the balance of convenience. The court will typically look at the situation between the parties at the point before the breach (or the act that the applicant is looking to prevent). The court will look at whether the injunction would work to preserve this status quo. The following are examples of the matters that the court may consider when looking at the balance of convenience:
- Being deprived of employment.
- Damage to the goodwill of a business.
- Preserving confidential or financial information.
- The conduct of the respondent and whether they took a knowing risk of having an application for an injunction being brought against them
- The judge’s intention to give directions for a speedy trial of the underlying issues
Are there any special factors?
Lastly, the court will consider any other special factors involved. It will also consider whether the injunction sought is capable of being expressed clearly in an order, and whether it could be enforceable.
Applying for an injunction
Prohibitory injunctions usually form part of a main claim that has already been issued in court. However, in some circumstances you can apply for the injunction before you have issued the main proceedings.
The application can be made on notice (where you let the respondent know of the application in advance) or without notice. Without notice applications will only be successful if the applicant can show that there is real urgency or there was a very good reason for not telling the respondent in advance.
Finally, it is worth noting that if the respondent does not comply with the injunction, he will be in contempt of court. This could lead to a fine or even prison!
If you need advice on an injunction, our dispute resolution team can help. Call today on 0800 988 7756 for a FREE initial consultation.