Injunctions are orders given by the court, on a discretionary basis, where monetary compensation for the applicant would be inadequate. They can be positive/mandatory or prohibitory/negative, on notice and interim or without notice, or final.

Interim injunctions are those made before a full trial of a dispute between the claimant and the other party, because the delay of waiting for the full trial cannot be tolerated by the applicant (whether claimant or defendant). A court granting such an injunction has to be aware that:

1...The respondent may so far have done nothing at all but the applicant has a fear that, if not stopped, the respondent will take a particular step in the future.

2...The respondent may well have a perfect right to do what he is threatening to do and the grant of an interim injunction may turn out at the trial to have quite unjustly prevented him from doing something perfectly lawful. In the case of a mandatory injunction - requiring the respondent positively to do something, an interim injunction would have effectively required him to act in a way that he was not obliged to.

Interim injunctions are only given where real urgency is demonstrated before the court and where there is no other method of dealing effectively with the problem. The normal course is for an injunction to be applied for on notice to the other party. Procedurally, the hearing can take place three days after notice to the other party, but in practice the other party will not have had time to prepare its response and so further hearings are arranged; in the meantime either the court can make a temporary order or, alternatively, an undertaking from the relevant party may be accepted by the court so as to maintain the status quo. As events unfold, it is open to either party to apply to the court for a variation or indeed extinguishment of an injunction.

In an emergency situation, the application can be made without notice to the other party. Here, the requirement on the applicant to satisfy the court as to the grounds for the order is that much greater and special conditions apply normally. The applicant and its lawyers have a particular duty of disclosure and candour towards the court in respect of all the material background. If a party defaults on this, it risks losing the right to a permanent injunction.

Additionally, without notice injunctions are normally granted for a short period until such time as the defendant has an opportunity to attend court to respond. Given these circumstances, a mandatory injunction is not commonly granted on an interim basis.

Basic principles for the grant of an interim injunction

1...There needs to be a serious issue between the parties which is required to be tried.

2...The balance of convenience dictates that the injunction should be granted or, to put it another way, there is less risk of doing an injustice in granting it than in not doing so.

At the interim stage it is not possible to state whether an applicant will, in fact, obtain an injunction permanently at a trial. If the claimant is not successful at trial, then the other party will have been inhibited from doing something that he wished to do and is entitled to do. The court therefore, has to consider:

1...How great/irreparable a harm will the applicant suffer if the injunction is not granted and the other party is left to do what he wants, until the trial
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2...What harm will the respondent suffer if he is inhibited from doing what he wants to do, until the trial.

3...What is the likely time-span until the full trial may be expected to take place.

4...Can monetary compensation provide sufficient compensation to the applicant and, thus, is the injunction in fact necessary.

5...The merits, if any, in favour of preserving the status quo.

6...Any other special factors.

Although mandatory or positive interim injunctions are rare, they are made where on the facts there is a strong probability of grave damage being suffered by the applicant or where the injunction effectively disposes of the whole case.

Cross undertaking

An applicant for an interim injunction is normally required to give a cross undertaking in damages. By this, the applicant agrees with the court that he will pay damages to the respondent if later it turns out that the application was wrong and this has caused loss to the respondent. This might for example cover loss of profit to a respondent in a passing-off case where it later turns out that the respondent has unjustly been prohibited from selling certain of his goods.

Although the amount of damage in such case will not be known until after an assessment later on, the cross undertaking may be unlimited in amount or confined to a maximum figure. The applicant will normally have to show that it can afford this commitment. This is done by:

1...Paying a suitable sum of money, either into court or to the applicant’s solicitor to be held as directed by the court

2...Providing a bond

3...By documentary evidence (accounts, financial reports) of its ability to pay

Freezing orders

Orders to freeze assets are made to preserve the subject matter of the action or to preserve assets presently available in support of a judgment already given. The applicant must have a realistic fear that they will be dissipated away or taken out of the jurisdiction before any other enforcement procedure can come into play.

Search and seizure orders

These are granted in cases where evidence of wrongdoing needs to be preserved for the trial process and, in the absence of the order, the material is likely to have been destroyed or removed from the jurisdiction. The order regulates the process for the search of premises and the manner in which the seized documents or goods are to be taken and stored.