Taking out or defending a civil injunction

You may need to take action for an injunction against another party, or you may have had an injunction threatened against you. If you are in this situation, what do you need to do?

At Berry Smith LLP, we regularly act in injunction cases, acting both for parties seeking to impose an injunction against another party, and for those against whom an injunction is sought.

What are the types of injunction?

There are two main types of injunction; a prohibitory injunction which seeks to stop a party from carrying out a specific act, and a mandatory injunction which seeks to require a party to take a particular action.

It is very important to act quickly in either case as a failure to do so can adversely affect a party’s position and a party may lose the chance to obtain an injunction as a consequence.

What examples are there of use of injunctions?

There can be a number of claims where an injunction is necessary to stop or enforce a course of action. Often proceedings are issued for an injunction to enforce restrictive covenants in an employee’s contract of employment after they have departed their employment. We often act for parties that seek an injunction, and parties that seek to defend such an application being made against them.

Injunctions are often considered where a party is carrying out unauthorised building work that interferes with the rights of others or were there is no permission to carry out such works.

When is an injunction pursued?

An injunction may be granted by a Court before substantive legal proceedings have commenced or at any point during court proceedings. The party making the application will be required to demonstrate that there is a claim to answer when making an application for an injunction, and usually, that an award of damages would not be an appropriate remedy. If the Court considers that the award of damages is an appropriate remedy then it is unlikely that an injunction would be granted, and the issue of damages would be considered in substantive court proceedings.

When it is necessary to make an application to the Court for an injunction the application can either be made with notice to the other party or (in some cases) without notice to the other party. Applications without notice are less common than those with notice, and there are additional obligations when applying for a without notice injunction.

Usually there will be several court hearings regarding the injunction. One at which the initial application is made and then a further one, called a return day at which matters are considered in more detail.

What needs to be done to pursue an application for an injunction?

On making an application the applicant must provide evidence of the claim and that there is a serious case to answer. The Application needs to set out the reasons why the injunction is required and an explanation as to the impact on the applicant if an injunction is not made. The applicant will also be required to demonstrate that they are able to cover any damages awarded to the opponent should the injunction be found at later point in proceedings to have been wrongly granted. This is called a cross-undertaking as to damages.

It is therefore important to only make applications for injunctions where they are absolutely necessary, as the consequences of the injunction being found to have been wrongly granted can be severe.

There is a court fee payable when an application is pursued, and usually there will also need to be substantive court proceedings issued at the same time or shortly afterwards.

What happens if someone breaches an injunction order?

Should the party upon whom an injunction is ordered fail to comply with the injunction then ultimately an application can be brought for Contempt of Court. The Court has the right to commit a person who has failed to comply with the injunction to prison or, alternatively, impose a fine.

Further advice and assistance

If you require information about injunctions or are considering whether it is appropriate to make an application for an injunction please contact one of our dispute resolution team who will be happy to discuss the process with you in further detail and provide advice.

If you have been served with injunction papers our solicitors can advise you on your rights in relation to the injunction and what action you are able to take in response to the injunction. It is important that when an injunction is made against you that you take legal advice immediately upon receiving notice of the injunction to ensure that you respond accordingly and are aware of what consequences your actions may have.