Injunction guide

Sun 17 December 2023

Injunctions are court orders that can be utilized to prevent harm or safeguard the rights of individuals or businesses. They are effective tools that can be used to halt ongoing harm or to secure the position of a party in anticipation of a legal conflict.

Who Can Apply for an Injunction?

Anyone can submit an injunction application, but there are certain specific conditions that must be met. The applicant must have a "substantive cause of action," which means that they must have a legal foundation for seeking an injunction. They must also demonstrate that the injunction is "just and convenient," which means that it is in the best interests of justice to grant it.

How Do I Know if I'm Entitled to an Injunction?

Before a court will consider granting an injunction, there are three fundamental principles that must be satisfied:

There is a substantive cause of action.
The injunction is just and convenient.
Damages would not provide an adequate remedy.

The applicant must have a genuine risk of irreversible harm: This means that the applicant must be able to show that they are likely to endure harm that cannot be adequately compensated by damages if the injunction is not ordered by the court. The balance of convenience needs to be in favour of granting the injunction:

What is the Procedure for Applying for an Injunction?

The process for submitting an injunction application will differ based on whether the application is to be made with or without notice to the other side.

On-notice application: The applicant must provide the other party with notice of the application and the hearing date.
Without notice application: The applicant does not provide the other party with notice of the application. This is only possible in urgent situations where it is essential to prevent irreversible harm.

Freezing Injunctions

A freezing injunction is a provisional order that prohibits a party from disposing of or dealing with their assets. It is a valuable strategic tool that can help to ensure that a defendant retains assets that can be enforced against if the claim is ultimately successful.

Injunctions to Search Premises for Assets or Evidence

A search order is a type of mandatory provisional order that requires a defendant to grant the claimant's representatives access to their premises to search for, duplicate, remove, and retain documents, information, or material. It is typically granted in support of intellectual property claims and other types of claims where there is a risk that evidence may be destroyed or disposed of before the trial.

Risks of Applying for an Injunction

Failure to obtain the injunction: If the court does not authorize the injunction, the applicant will have wasted time, money, and resources on the application.
Adverse costs order: If the applicant loses the case, the court may order them to pay the defendant's legal costs.

It is important to carefully consider the risks before applying for an injunction, as the costs of losing an application can be significant.