Unit 7 - Interim Orders Reading

To prepare for this unit you should read the following:  ·      CPR 23.1-12 ·      PD 23A paragraphs 2, 3, 4, 5, 6.1-6.3, 7 ·      CPR 25.1 and commentary paragraphs 25.1.9-25.1.11; 25.1.14.1-25.1.14.2 ·      CPR 25.2 ·      CPR 25.3 and commentary paragraphs 25.3.2-25.3.8 ·      PD 25A paragr...

To prepare for this unit you should read the following:  ·      CPR 23.1-12 ·      PD 23A paragraphs 2, 3, 4, 5, 6.1-6.3, 7 ·      CPR 25.1 and commentary paragraphs 25.1.9-25.1.11; 25.1.14.1-25.1.14.2 ·      CPR 25.2 ·      CPR 25.3 and commentary paragraphs 25.3.2-25.3.8 ·      PD 25A paragraphs 4 and 5 ·      The commentary in Volume 2 of 'Civil Procedure' (the White Book) at paragraphs 15-4 (first sub-paragraph to "... either unconditionally or on such terms as the court thinks just"); 15-7 to 15-8; 15.9.1 (first sub-paragraph to "...have been unsuccessful in asserting their right at trial"); 15.10 to 15-12; 15-14 to 15-15 (first sub-paragraph ending "...except for the limited purposes permitted by guideline (6)."; 15-17 to 15-18 (first two sub paragraphs to "it is for the judge to control the extent of the inquiry undertaken"); 15-20 (first sub-paragraph ending, "...until the very end of the period of the contractual restriction.") and 15-24 (first five sub-paragraphs ending "(4) sufficiently outweigh the risk of injustice if it is granted."); 15-25 to 15-27; and 15-30. ·      Cases excepted from the *Cyanamid* guidelines ·      *American Cyanamid Co (No 1) v Ethicon Ltd* \[1975\] UKHL 1 Also, please download court form N16A (general form of injunction) [Form N16A](https://elite.law.ac.uk/bbcswebdav/pid-15832649-dt-content-rid-355859141_4/xid-355859141_4) and bring this to the workshop.   CPR 23.1-12 **[General Rules about Applications for Court Orders]** [Where to make an application] 23.2 \(1) General rule is that app must be made to the court of CC hearing centre where the claim was started. \(2) If claim has been transferred to another court since it was started, an application must be made to the court where it is being transferred, unless there is a good reason to make application to another court. \(3) If parties have been notified of fixed date for the trial, an application must be made to the court where trial is to take place. \(4) Subject to (5), if an application is made before a claim has been started, it must be made to court where claim is most likely to be started -- unless there is a good reason to make the application to a different court. \(5) Application made in county court before a claim has been started may be made at any county court hearing centre, unless enactment, PD, or direction states otherwise. \(6) If application made after proceedings to enforce judgment have begun, it must be made to court or county court hearing centre which is dealing with the enforcement of judgment unless enactment, rule or PD states otherwise. [Application notice to be filed] 23.3 An applicant must file an application notice unless -- a. a rule or PD states otherwise; or b. the court dispenses with the requirement. [Notice of an application] 23.4 A copy of the application notice must be served on each respondent unless a rule, PD or court order permits otherwise. [Time when application is made] 23.5 Where application must be made within specified time, it is made in time if the application notice is received by the court within that time. [What an application notice must include] 23.6 An application notice must state--- (Part 22 requires an application notice to be verified by a statement of truth if the applicant wishes to rely on matters set out in the application notice as evidence.) [Service of a copy of an application notice] 23.7 **(1)** A copy of the application notice must be served--- **(2)** If a copy of the application notice is to be served by the court, the applicant must, when they file the application notice, file a copy of any supporting written evidence. **(3)** When a copy of an application notice is served it must be accompanied by--- **(4)** If--- the court may direct that, in the circumstances of the case, sufficient notice has been given, and may hear the application. [Applications which may be decided without a hearing] 23.8 **(1)** The court may deal with an application **without** a hearing if--- **(2)** If the parties agree to dispense with a hearing, a party may not without the court\'s permission apply to have the order set aside, varied or stayed. **(3)** If the court decides the application without a hearing under paragraph (1)(c) and does so without giving the parties an opportunity to make representations--- **(4)** An application under paragraph (3) shall be considered at an oral hearing unless the court decides and states in an order that the application is totally without merit. **(5)** If the court decides under paragraph (4) that the application is totally without merit, an application under paragraph (3) may be made for reconsideration without an oral hearing. [Service of order and application where application made without notice] 23.9 **(1)** This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice. **(2)** Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any supporting evidence must, unless the court orders otherwise, be served with the order on any party or other person--- **(3)** The order must contain a statement of the right to make an application to set aside(GL) or vary the order under rule 23.10. [Application to set aside or vary order made without notice] 23.10 **(1)** A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside(GL) or varied. **(2)** An application under this rule must, unless the court directs otherwise, be made within 7 days after the date on which the order was served on the person making the application. [Power of the court to proceed in the absence of a party] 23.11 **(1)** Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in their absence. **(2)** Where--- [Applications that are totally without merit] 23.12 If the court dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the application is totally without merit--- ·      PD 23A paragraphs 2, 3, 4, 5, 6.1-6.3, 7 **Referral to a different judge** **1.** 23APD.1  Masters or District Judges may refer to a judge of a higher level any matter which they think should properly be decided by that judge, and that judge may either dispose of the matter or refer it back to the Master or District Judge. **Application notices** **2.1** 23APD.2  An application notice must, in addition to the matters set out in rule 23.6, be signed and include:  1. the title of the claim, 2. the reference number of the claim, 3. the full name of the applicant, 4. where the applicant is not already a party, their address for service, including a postcode; and 5. either a request for a hearing or a request that the application be dealt with without a hearing. **2.2** Where a hearing is requested by the applicant or the court decides to hold a hearing, the court will notify the applicant of the time and date for the hearing of the application and may at the same time give directions for the filing of evidence. **2.3** On receipt of an application notice containing a request that the application be dealt with without a hearing, a Master, District Judge or other judge will decide whether the application is suitable for consideration without a hearing. **2.4** Where the Master, District Judge or other judge so decides, the court will inform the applicant and the respondent and may give directions for the filing of evidence. **2.5** Every application should be made as soon as it appears necessary or desirable to make it. **2.6** Applications should wherever possible be made so that they can be considered at any hearing for which a date has already been or is about to be fixed by the court. **2.7** The parties must anticipate that at any hearing the court may wish to review the conduct of the case as a whole and give any necessary case management directions. They should be ready to assist the court and to answer questions the court may ask. **2.8** Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but does not have enough time to file or serve an application notice they should inform the other party and the court (if possible in writing) as soon as possible and make the application orally at the hearing. **Applications without service of application notice** **3.** 23APD.3  An application may be made without serving an application notice only:  \(1) where there is exceptional urgency, \(2) where the overriding objective is best furthered by doing so, \(3) by consent of all parties, \(4) with the permission of the court, \(5) where the applicant is seeking a direction that their address not be provided to a party, \(6) where paragraph 2.8 above applies, or \(7) where a court order, rule or practice direction permits. **Giving notice of an application** **4.** 23APD.4  Where an application notice should be served but there is not enough time to do so, informal notification of the application should be given unless the circumstances of the application require secrecy. **Civil National Business Centre** **5.1** 23APD.5A  If the claim is started in the Civil National Business Centre, an application made after a claim has been started must be made to the Civil National Business Centre or County Court hearing centre where the claim is being dealt with. **5.2** A District Judge may---  a. consider the application without a hearing; or b. direct that the application should be transferred to a County Court hearing centre. **Hearings** **6.1** 23APD.6  A hearing may be held in person, remotely or partially remotely in accordance with arrangements permitted or required under any enactment.  **6.2** The court will communicate to the parties the arrangements for the hearing. The parties, their representatives and any witnesses must comply with those arrangements. **6.3** Hearings to deal with allocation or listing or with a time estimate of two hours or less may be conducted remotely, depending on the normal practice at a particular court. **Documents** **6.4** Where a document is required to be filed and served in advance of a hearing, the party or their legal representative must, unless the court directs otherwise, do so no later than 4pm at least 2 days before the hearing. **6.5** A case summary and draft order must be filed and served in---  - (a)multi-track cases; and - (b)small, fast and intermediate track cases if the court so directs. **Evidence** **7.1** 23APD.7  Where it is intended to rely on evidence not contained in the application itself, the evidence should be served with the application unless it has already been served. **7.2** Where a respondent wishes to rely on evidence which has not yet been served they should serve it as soon as possible and in accordance with any directions of the court. **7.3** If it is necessary for the applicant to serve any evidence in reply it should be served as soon as possible and in accordance with any directions of the court. **7.4** Evidence must be filed with the court as well as served on the parties. Exhibits to witness statements should not be filed unless the court directs otherwise. **7.5** The contents of an application notice may be used as evidence (otherwise than at trial) provided the contents have been verified by a statement of truth (see Part 22). ·      CPR 25.1 and commentary paragraphs 25.1.9 - 25.1.11; 25.1.14.1 - 25.1.14.2 #### **[25.1--- Orders for interim remedies^1^]** 25.1  **(1)** The court may grant the following interim remedies--- a. an interim injunction(GL); b. an interim declaration; c. above \^ d. an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under subparagraph (c); e. an order under section 4 of the Torts (Interference with Goods) Act 1977 to deliver up goods; f. an order (referred to as a "freezing injunction (GL)")--- g. an order directing a party to provide information about the location of relevant property or assets or to provide information about relevant property or assets which are or may be the subject of an application for a freezing injunction(GL). h. an order (referred to as a "search order") under section 7 of the Civil Procedure Act 1997 (order requiring a party to admit another party to premises for the purpose of preserving evidence, etc.); i. an order under section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (order for disclosure of documents or inspection of property before a claim has been made); j. an order under section 34 of the Senior Courts Act 1981 or section 53 of the County Courts Act 1984 (order in certain proceedings for disclosure of documents or inspection of property against a non-party); k.  an order (referred to as an order for interim payment) under rule 25.6 for payment by a defendant on account of any damages, debt or other sum (except costs) which the court may hold the defendant liable to pay; l. an order for a specified fund to be paid into court or otherwise secured, where there is a dispute over a party's right to the fund; m. an order permitting a party seeking to recover personal property to pay money into court pending the outcome of the proceedings and directing that, if he does so, the property shall be given up to him; n. an order directing a party to prepare and file accounts relating to the dispute; o. an order directing any account to be taken or inquiry to be made by the court; and p. an order under Article 9 of Council Directive (EC) 2004/48 on the enforcement of intellectual property rights (order in intellectual property proceedings making the continuation of an alleged infringement subject to the lodging of guarantees). - (Rule 34.2 provides for the court to issue a witness summons requiring a witness to produce documents to the court at the hearing or on such date as the court may direct.) \(2) In paragraph (1)(c) and (g), *"relevant property"* means property (including land) which is the subject of a claim or as to which any question may arise on a claim. **(3)** The fact that a particular kind of interim remedy is not listed in paragraph (1) does not affect any power that the court may have to grant that remedy. **(4)** The court may grant an interim remedy whether or not there has been a claim for a final remedy of that kind. 25.1.9 - 25.1.11; 25.1.14.1 - 25.1.14.2 [Commentary ] [25.1.9 Rule 25.1(1)(a) -- INTERIM INJUNCTION] Paragraph (1)(a) of r.25.1 refers to the court's jurisdiction to grant an interim injunction. The Glossary attached to the CPR (see para.E1-1 below) explains that an injunction is "a court order prohibiting a person from doing something or requiring a person to do something". An injunction granted by judicial decision at trial after the claimant has established the existence of their right in law and the fact that the defendant has infringed it or is about to do so may be described as a *perpetual or final injunction*. An order other than a final judgment, whether such order be made before judgment or not, may properly be described as an interim order. Under the CPR, "interim" is preferred to "interlocutory". A claim form must specify the remedy the claimant seeks (r.16.2) and therefore should include any claim for an injunction as a final order. However, an application for an interim injunction may be made by any party, whether or not a claim for an injunction was included in that party's claim form or Part 20 claim (e.g. counterclaim). The interim injunction sought must be worded so that the person subject to the injunction knows precisely what he is to be prevented from doing or is required to do. If the applicant cannot define the relief sought with a sufficient degree of precision (for example, the extent of an area of land, or the trade secrets or confidential information alleged to require protection), no injunction will be granted (*Lawrence David v Ashton \[1989\] I.C.R. 123).* Where an interim injunction is sought on a without notice application (see para.23.4.1 above) with incomplete evidence, it is a basic requirement that there has to be a real urgency for the injunction, particularly where an early effective hearing date is available. Subject to certain limits, an interim injunction may be granted at any time (r.25.2)  When applying for an interim injunction without notice, the applicant is under a duty to make full, fair and accurate disclosure of material information to the court and to draw the court's attention to significant factual, legal and procedural aspects of the case. [25.1.10 - Jurisdiction] Provided that the court has personal jurisdiction over the respondent, and subject to any relevant statutory restrictions, the court has unlimited discretion to grant an injunction where it appears to be just and equitable to do so: s.37 of the Senior Courts Act 1981 It now appears to be settled that injunctive relief may be granted in cases even where there is no claim for substantive relief. Examples of such injunctions include freezing orders in support of an existing judgment or order for costs, against a third party who holds or controls the defendant's assets or in support of foreign proceedings. While the court has the power to grant any injunction where it has personal jurisdiction and it is just and equitable to do so, it will usually only exercise such power in accordance with existing practice. [25.1.11 -- Principles and guidelines to be applied] Orders restricting freedom of expression (including "privacy" and "anonymity" orders) are a derogation from the principle of open justice and require "exceptional circumstances." Applicants for any such order will be expected to comply with *Practice Guidance (Interim Non-disclosure Orders) \[2012\] 1 W.L.R. 1003* (see para.53PG.11) and to use the Model Order there set out. The apparent greater reluctance of the courts to grant mandatory injunctions (or injunctions carrying the same risk of injustice as mandatory injunctions) as opposed to prohibitory injunctions (see, for example *SAB Miller Africa BV v East African Breweries Ltd \[2009\] EWHC 2140 (Comm); \[2010\] 1 Lloyd's Rep. 392* (Christopher Clarke J)) is not the application of a different principle but is because a mandatory injunction is often more likely to cause irremediable prejudice than cases in which a defendant is merely prevented from taking or continuing with some course of action [25.1.14.1 -- UNDERTAKING by defendant in lieu of injunction] Where an interim injunction is granted without notice, and at the on-notice hearing on the return date the claimant accepts the defendant's offer of security and a consent order is made, it is important that the parties should be clear as to whether the claimant's application to continue the interim injunction is thereby disposed of or whether it is simply adjourned. Whether it is one or the other affects the grounds upon which the defendant may subsequently seek release from the undertaking. The relevant authorities, in particular *Chanel Ltd v F.W. Woolworth & Co Ltd \[1981\] 1 W.L.R. 485, CA*, and *Butt v Butt \[1987\] 1 W.L.R. 1351, CA*, were examined and applied in  *Emailgen Systems Corp v Exclaimer Ltd \[2013\] EWHC 167 (Comm); \[2013\] 1 W.L.R. 2132* (Teare J). In that case it was held that the defendants' right to argue that there was no basis for the freezing order was compromised by the terms of their undertaking. Consequently, as the authorities demonstrate, although the defendants could seek to be released from the undertaking for "good cause", it was not open to them to seek release on the grounds that the freezing order ought never to have been granted without notice. An undertaking is a solemn promise which a litigant volunteers to the court. - A court has no power to impose any variation of the terms of a voluntary promise. - A party who desires to be released from an undertaking in lieu of an injunction, perhaps with an offer of a different undertaking substituted, may make an application for release (or discharge) to the court supported by evidence (an application to vary an undertaking would be wholly wrong in form) (*Birch v Birch \[2017\] UKSC 53; \[2017\] 1 W.L.R. 2959.* In *Angel Group Ltd v Davey 21 February 2018, unrep.* (Judge Hodge QC), the judge: \(1) noted that in *Di Placito v Slater \[2003\] EWCA Civ 1863; \[2004\] 1 W.L.R. 1605*, CA, Potter LJ explained that the court's discretion to vary undertakings voluntarily given during proceedings is not at large but is to be exercised only in certain circumstances; and \(2) held that the same considerations apply to applications to vary an interim order made by consent. In the earlier case Potter LJ said (at \[32\] and \[33\]) that the court regards as of particular importance: \(1) the context in which the undertaking was given; [25.1.14.2 -- Discharge or release from, and appeals in relation to, undertakings] In [*Birch v Birch \[2017\] UKSC 53; \[2017\] 1 W.L.R. 2959, SC*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2042224220&pubNum=7640&originatingDoc=I32FF012055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=3db7c44494f24e2d8937833350dfbe56&contextData=(sc.Category)), the Supreme Court clarified that a court has no power to impose any variation of the terms of a voluntary promise. - A litigant who wishes to cease to be bound by their undertaking should apply for release from, or discharge, of it, and may accompany the application with an offer of a further undertaking in different terms. - The court may decide to accept the further undertaking and, in the light of it, to grant the application for release. - Equally, the court may indicate that it will grant the application for release only on condition that the applicant is willing to give an additional undertaking or one in terms different from those of a further undertaking currently on offer. In the absence of extraordinary circumstances, a claimant who has given an undertaking (however reluctantly) in order to obtain an injunction or other order, is not normally entitled to pursue an appeal against that undertaking. Such a litigant can apply to be released from the undertaking (either unconditionally or on condition of offering a new undertaking), but generally a change in circumstances must be shown: [*Schettini v Silvestri \[2019\] EWCA Civ 349*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2047714254&pubNum=6448&originatingDoc=I32FF012055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=3db7c44494f24e2d8937833350dfbe56&contextData=(sc.Category)) at \[21\].  A litigant who wishes to dispute the contents of an undertaking before an appeal court has two possible routes. ·      CPR 25.2 **25.2--- Time when an order for an interim remedy may be made^1^** 25.2  **(1)** An order for an interim remedy may be made at any time, including--- (Rule 7.2 provides that proceedings are started when the court issues a claim form.) **(2)** However--- **(3)** Where it grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced. **(4)** In particular, the court need not direct that a claim be commenced where the application is made under section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (order for disclosure, inspection, etc., before commencement of a claim). ·      CPR 25.3 and commentary paragraphs 25.3.2-25.3.8 #### #### 25.3--- How to apply for an interim remedy^1^ 25.3  **(1)** The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice. **(2)** An application for an interim remedy must be supported by evidence, unless the court orders otherwise. **(3)** If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given. (Part 3 lists general powers of the court.) (Part 23 contains general rules about making an application.) [25.3.2 -- Notice] [Rule 25.3(1)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255441&pubNum=121175&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=a3d32e9ff4c14a5cb327fc2dce77ea9f&contextData=(sc.Category)) is an example of a rule providing an exception to the general rule (stated in [r.23.4(1)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255425&pubNum=121175&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=a3d32e9ff4c14a5cb327fc2dce77ea9f&contextData=(sc.Category))) that a copy of the application notice must be served on each respondent. The wide-spread use of mobile devices for the sending and receiving of information makes it unlikely that there will ever be a practical reason why an applicant should not give at least informal notice to a respondent (*O'Farrell v O'Farrell \[2012\] EWHC 123 (QB); \[2013\] 1 F.L.R. 77; \[2012\] Fam. Law 514* Paragraph 4.3(3) of PD 25A states that in proceedings to which that practice direction applies, except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application. An application for a court order in the form of an order for an interim remedy may be made without notice "if it appears to the court that there are good reasons for not giving notice" (r.25.3(1)) (i.e. serving a copy of the notice of application under Pt 23). If the applicant makes an application without giving notice (i.e. without serving a copy of the notice of application under Pt 23), the evidence in support of the application (see further below) must state the reasons why notice was not given (r.25.3(3)). The court should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a freezing or search order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act (*National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Practice Note) \[2009\] UKPC 16; \[2009\] 1 W.L.R. 1405, PC*). [25.3.3 -- Evidence] An application for an interim remedy must be supported by evidence unless the court orders otherwise ([r.25.3(2)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255441&pubNum=121175&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=a3d32e9ff4c14a5cb327fc2dce77ea9f&contextData=(sc.Category))). [Rule 32.6(1)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255525&pubNum=121175&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=a3d32e9ff4c14a5cb327fc2dce77ea9f&contextData=(sc.Category)) states that the general rule is that evidence "at hearings other than the trial" (e.g. proceedings for an interim remedy before or after trial) is to be by witness statement (rather than by affidavit) unless the court, a practice direction or any other enactment requires otherwise. Special requirements as to evidence are imposed by r.25.5 in relation to the interim remedies specifically referred to in that rule. [25.3.4 -- Interim Remedy order hearings in private] [\ Rule 39.2(1)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255613&pubNum=121175&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=a3d32e9ff4c14a5cb327fc2dce77ea9f&contextData=(sc.Category)) states that the general rule is that a hearing (including a hearing other than at trial) is to be in public. However, a hearing, or any part of it, may be in private in the circumstances listed in [r.39.2(3)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255613&pubNum=121175&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=a3d32e9ff4c14a5cb327fc2dce77ea9f&contextData=(sc.Category)). Exceptional circumstances which may be particularly apposite to the hearing of an application for an order for an interim remedy are: - that publicity would defeat the object of the hearing; - that it is a hearing on an application without notice and it would be unjust to any respondent for there to be a public hearing; - that the hearing involves confidential information (including information relating to personal financial matters) and - publicity would damage that confidentiality. The court has an inherent power to order that information should not be disclosed and certain rules of court are to similar effect. [25.3.5 -- Applicant's disclosure duties where application made without notice ] **As a matter of principle no order should be made in civil proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given** (e.g. where to give notice might itself defeat the ends of justice). To grant an interim remedy in the form of an injunction without notice "is to grant an exceptional remedy" ([*Moat Housing Group-South Ltd v Harris \[2005\] EWCA Civ 287; \[2006\] Q.B. 606, CA*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2006352391&pubNum=6448&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=a3d32e9ff4c14a5cb327fc2dce77ea9f&contextData=(sc.Category)), at paras 63 and 71). The court should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a freezing or search order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act ([*National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Practice Note) \[2009\] UKPC 16; \[2009\] 1 W.L.R. 1405, PC*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2018672220&pubNum=6501&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=a3d32e9ff4c14a5cb327fc2dce77ea9f&contextData=(sc.Category))). It is well established that on all applications **[without]** notice it is the duty of the applicant (including an applicant in person) and those representing the applicant to make full and frank disclosure of all matters relevant to the application; this includes all matters of fact or law which are or may be adverse to the applicant. - An applicant must disclose to the judge "any fact known to him which might affect the judge's decision whether to grant relief or what relief to grant" (*Fitzgerald v Williams \[1996\] Q.B. 657*, CA, at 667 per Sir Thomas Bingham MR). Although often expressed in terms of a duty of disclosure, the "ultimate touchstone" is whether the presentation of the application is fair in all material respects: per Popplewell LJ in *Fundo Soberano De Angola v Jose Filomeno dos Santos \[2018\] EWHC 2199 (Comm)*.  The policy consideration underlying this duty is that of minimising the risks of error inherent when a court makes an order affecting the interests of a party who has not had the opportunity to be heard and make representations. The duty does not cease upon the making, on the applicant's without-notice application, of the order sought. - See, e.g., *Commercial Bank of the Near East v A, B, C and D \[1989\] 2 Lloyd's Rep. 319* (Saville J), and *O'Reagan v Iambic Productions Ltd (1989) 139 N.L.J. 1378* (Sir Peter Pain), both cases in which, after the order had been obtained but before it had been served, significant facts occurred, which the judges held should have been notified to the court, so that the court could consider, in the light of the new developments, whether the without-notice order should remain and/or be relied upon. The importance of the so-called "golden rule"---that, on an application made without notice, the party making the application must identify any material facts, and in particular any which may constitute a defence or some ground for not granting the order sought---was again emphasised in *Masri v Consolidated Contractors International Co SAL \[2011\] EWHC 1780 (Comm); (2011) 108(30) L.S.G. 25* In *Marc Rich & Co Holding GmbH v Krasner \[1999\] C.L.Y. 487*, the Court of Appeal said the duty was clearly described on the basis of the principal authorities by Bingham J in *Siporex Trade SA v Comdel Commodities \[1986\] 2 Lloyd's Rep. 428* at 437. 1. The applicant must show the utmost good faith and disclose their case fully and fairly. 2. They must, for the protection and information of the respondent, in the evidence in support of the application summarise their case and the evidence on which it is based. 3. They must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents. 4. They must investigate the nature of the claim asserted and the facts relied on before applying and must identify any likely defences. 5. They must disclose all facts which reasonably could or would be taken into account by the judge in deciding whether to grant the application. [25.3.5.1 -- Applicant's disclosure duties where application made on short notice] [\ Rule 23.7](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255428&pubNum=121175&originatingDoc=I32ADACD055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=2fa0384eb85541b48ca9ed32efc2e0eb&contextData=(sc.Category)) states that an application notice (whether for an interim injunction or some other relief) must be served as soon as practicable after it is filed and, except where another time limit is specified, must be served at least three days before the court is to deal with the application.  Where a respondent is given "short notice" of an application for an interim remedy it cannot be expected that he will be properly prepared and able to put all the relevant legal and factual information before the court. The fact that the respondent is represented on an urgent application for an interim injunction, appears at the hearing and makes submissions, does not release or absolve the claimant from his duty to make full and frank disclosure.  [25.3.6 -- Discharge of injunction for material non-disclosure] In an interim injunction case, if the duty of full and fair disclosure is not observed, the court may discharge the injunction. - It is no excuse for an applicant to say that they were not aware of the importance of the matters they omitted to state. - Further, where the duty is not observed, the court may discharge the injunction even if after full inquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure. In deciding what should be the consequences of any breach of duty it is necessary for the court to take account of all the relevant circumstances, including the gravity of the breach, the excuse or explanation offered, and the severity and duration of the prejudice occasioned to the defendant, including whether the consequences of the breach were remediable and had been remedied; above all, the court has to bear in mind the overriding objective and the need for proportionality.  However, discharge of the order is not automatic on any non-disclosure being established of any fact known to the applicant which is found by the court to have been material.  [25.3.7 -- Applications to set aside for material non-disclosure not to be made without proper reason] In some modern cases judges have been critical of a growing tendency among litigants against whom interim injunctions had been granted "to allege material non-disclosure on rather slender grounds" Generally, it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself (*Crown Resources AG v Vinogradsky, 15 June 2001, unrep.* [25.3.8 -- Discharge and re-grant of an injunction ] Where serious and culpable non-disclosure sufficient to result in the court discharging an interim injunction granted without notice has been exposed and established, the question whether a fresh injunction should be granted is likely to arise. In these circumstances the judge has a balancing task to perform. - On the one hand, if justice requires that a fresh injunction should be granted to protect the applicant from harm that might befall them, it might be thought unjust to refuse it on the ground of non-disclosure  - On the other hand, such is the importance of the duty that, in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given them  PD 25A paragraphs 4 and 5 [Urgent applications and applications without notice] ----------------------------------------------------------------- **4.1** ------- 25APD.4  These fall into two categories:  - (1)applications where a claim form has already been issued, and - (2)applications where a claim form has not yet been issued, and, in both cases, where notice of the application has not been given to the respondent. **4.2** ------- These applications are normally dealt with at a court hearing but cases of extreme urgency may be dealt with by telephone. **4.3** ------- **Applications dealt with at a court hearing after issue of a claim form**:  \(1) the application notice, evidence in support and a draft order (as in 2.4 above) should be filed with the court two hours before the hearing wherever possible, \(2) if an application is made before the application notice has been issued, a draft order (as in 2.4 above) should be provided at the hearing, and the application notice and evidence in support must be filed with the court on the same or next working day or as ordered by the court, and \(3) except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application. **4.4** ------- Applications made before the issue of a claim form:  \(1) In addition to the provisions set out at 4.3 above, unless the court orders otherwise, either the applicant must undertake to the court to issue a claim form immediately or the court will give directions for the commencement of the claim,(https://uk.westlaw.com/Document/I406D8670777811E79212DFEE3C6BBBA5/View/FullText.html?ppcid=627d3f27695540bfa1753d7719529b9e&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)&nortId=I701B67208CDB11E7843CB92299143231&navigationPath=%2FBrowse%2FHome%2FBooks%2FWhiteBook%3FnavId%3D3FD103798F7CF80ED536EE2303D3B951%26transitionType%3DDefault%26contextData%3D(sc.Default)%26firstPage%3Dtrue&comp=books#co_footnote_9ec1b2ec-6ee6-48e8-995d-8410ec7cf57e) \(2) where possible the claim form should be served with the order for the injunction, \(3) an order made before the issue of a claim form should state in the title after the names of the applicant and respondent "the Claimant and Defendant in an Intended Action". **4.5** ------- Applications made by telephone:  \(1) where it is not possible to arrange a hearing, application can be made between 10.00am and 5.00pm weekdays by telephoning the Royal Courts of Justice on 020 7947 6000 and asking to be put in contact with a High Court Judge of the appropriate Division available to deal with an emergency application in a High Court matter. The appropriate district registry may also be contacted by telephone. In County Court proceedings, the appropriate County Court hearing centre should be contacted, \(2) where an application is made outside those hours the applicant should either---  a. telephone the Royal Courts of Justice on 020 7947 6000 where he will be put in contact with the clerk to the appropriate duty judge in the High Court (or the appropriate area Circuit Judge where known), or b. the Urgent Court Business Officer of the appropriate Circuit who will contact the local duty judge, \(3) where the facility is available it is likely that the judge will require a draft order to be supplied by electronic means to them, \(4) the application notice and evidence in support must be filed with the court on the same or next working day or as ordered, together with two copies of the order for sealing, (5)injunctions will be heard by telephone only where the applicant is acting by counsel or solicitors. [Orders for injunctions] ------------------------------------ **5.1** ------- 25APD.5  Any order for an injunction, unless the court orders otherwise, must contain:  \(1) subject to paragraph 5.3, an undertaking by the applicant to the court to pay any damages which the respondent sustains which the court considers the applicant should pay, \(2) if made without notice to any other party, an undertaking by the applicant to the court to serve on the respondent the application notice, evidence in support and any order made as soon as practicable,  \(3) if made without notice to any other party, a return date for a further hearing at which the other party can be present,  \(4) if made before filing the application notice, an undertaking to file and pay the appropriate fee on the same or next working day, and \(5) if made before issue of a claim form--- a. an undertaking to issue and pay the appropriate fee on the same or next working day, or  b. directions for the commencement of the claim.  **5.2** ------- Subject to paragraph 5.3, when the court makes an order for an injunction, it should consider whether to require an undertaking by the applicant to pay any damages sustained by a person other than the respondent, including another party to the proceedings or any other person who may suffer loss as a consequence of the order.  **5.3** ------- - (1)If in an Aarhus Convention claim to which [46.26](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0531229453&pubNum=121175&originatingDoc=I406D8670777811E79212DFEE3C6BBBA5&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=7c75ef549b074a6d8e3348c429effc90&contextData=(sc.Category)) to [46.28](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0531229459&pubNum=121175&originatingDoc=I406D8670777811E79212DFEE3C6BBBA5&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=7c75ef549b074a6d8e3348c429effc90&contextData=(sc.Category)) apply the court is satisfied that an injunction is necessary to prevent significant environmental damage and to preserve the factual basis of the proceedings, the court will, in considering whether to require an undertaking by the applicant to pay any damages which the respondent or any other person may sustain as a result, and the terms of any such undertaking--- - (a)have particular regard to the need for the terms of the order overall not to be such as would make continuing with the claim prohibitively expensive for the applicant; and - (b)make such directions as are necessary to ensure that the case is heard promptly. - (2)In this paragraph - (a)"Aarhus Convention claim" has the same meaning as in [rule 46.24(2)(a)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0531229447&pubNum=121175&originatingDoc=I406D8670777811E79212DFEE3C6BBBA5&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=7c75ef549b074a6d8e3348c429effc90&contextData=(sc.Category)); and - (b)"member of the public" is to be construed in accordance with [rule 46.24(2)(b)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0531229447&pubNum=121175&originatingDoc=I406D8670777811E79212DFEE3C6BBBA5&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=7c75ef549b074a6d8e3348c429effc90&contextData=(sc.Category)). - (3)Proceedings are "prohibitively expensive" if their likely costs, including any court fees payable by the applicant and the amount of any cross-undertaking in damages, and having regard to any limit under [Part 45](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0294884876&pubNum=121175&originatingDoc=I406D8670777811E79212DFEE3C6BBBA5&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=7c75ef549b074a6d8e3348c429effc90&contextData=(sc.Category)) on a party's maximum costs liability, either--- - (a)exceed the financial resources of the applicant; or - (b)are objectively unreasonable having regard to the factors set out in [rule 46.27(3)(b)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0531229456&pubNum=121175&originatingDoc=I406D8670777811E79212DFEE3C6BBBA5&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=7c75ef549b074a6d8e3348c429effc90&contextData=(sc.Category)). - (4)When a court considers the financial resources of the applicant, it will have regard to any financial support which any person has provided or is likely to provide to the applicant. **5.4** ------- An order for an injunction made in the presence of all parties to be bound by it or made at a hearing of which they have had notice, may state that it is effective until trial or further order. **5.5** ------- Any order for an injunction must set out clearly what the respondent must do or not do. ·      The commentary in Volume 2 of 'Civil Procedure' (the White Book) at paragraphs 15-4 (first sub-paragraph to "... either unconditionally or on such terms as the court thinks just"); 15-7 to 15-8; 15.9.1 (first sub-paragraph to "...have been unsuccessful in asserting their right at trial"); 15.10 to 15-12; 15-14 to 15-15 (first sub-paragraph ending "...except for the limited purposes permitted by guideline (6)."; 15-17 to 15-18 (first two sub paragraphs to "it is for the judge to control the extent of the inquiry undertaken"); 15-20 (first sub-paragraph ending, "...until the very end of the period of the contractual restriction.") and 15-24 (first five sub-paragraphs ending "(4) sufficiently outweigh the risk of injustice if it is granted."); 15-25 to 15-27; and 15-30. **[Paragraphs 15-4 (first sub-paragraph to "... either unconditionally or on such terms as the court thinks just")]** [Jurisdiction -- ENGLISH PROCEEDINGS] Subsections (1) and (2) of s37 Senior Courts Act 1981 state that the High Court may by order (whether interlocutory or final) grant an injunction in all cases in which it appears to the court "just and convenient" to do so, and any such order may be made either unconditionally or on such terms as the court thinks just.  **[15-7 -- Principles and Guidelines to be applied (AMERICAN CYANAMID CO CASE)]** The grant of an interlocutory injunction is a very important matter as a defendant can be sent to prison for breach ([*Rochdale BC v Anders \[1988\] 3 All E.R. 490*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=1988182524&pubNum=4660&originatingDoc=I7628C2B055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=593a71ae73284a5489842b1854e67405&contextData=(sc.Category))). When an application is made for an order granting such relief, the court has a very difficult jurisdiction to exercise. It is sometimes impossible to make an order which may not do some injustice to one party or the other ([*Thompson v Park \[1944\] 1 K.B. 408, CA*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=1944025992&pubNum=3719&originatingDoc=I7628C2B055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=593a71ae73284a5489842b1854e67405&contextData=(sc.Category)) at 411, per du Parcq LJ). A claimant is not entitled to interim injunctive relief simply because they seek it. The procedure to be adopted by the court in hearing an application for an interlocutory injunction, and the tests to be applied, were laid down by the House of Lords in *American Cyanamid Co v Ethicon Ltd \[1975\] A.C. 396; \[1975\] 2 W.L.R. 316, HL*. According to the *American Cyanamid Co* case, when an application is made for an interlocutory injunction, in the exercise of the court's discretion an initial question falls for consideration. That is:  \(1) Is there a serious question to be tried? If the answer to that question is "yes", then two further related questions arise; they are: \(2) Would damages be an adequate remedy for a party injured by the court's grant of, or its failure to grant, an injunction? \(3) If not, where does the "balance of convenience" lie? The first question indicates a threshold requirement. It marked a departure from the law that applied before the decision of the House of Lords in the *American Cyanamid Co* case. Guidance on the manner on which the court should approach the second and third questions is provided in guidelines derived from that case (to be applied in two stages). These guidelines have been much discussed in later decisions. **[15-8 -- A Serious Question to be Tried]** The key principles derived from the speech of Lord Diplock in *American Cyanamid Co v Ethicon Ltd \[1975\] A.C. 396, HL*, at pp.406--409, may be listed as follows:  \(1) The grant of an interlocutory injunction is a remedy that is both temporary and discretionary. \(2) The evidence available to the court at the hearing of the application for an interlocutory injunction is incomplete. It is given in written evidence and has not been tested by oral cross-examination. \(3) It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on the written evidence as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. \(4) When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the claimant's legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. \(5) It was to mitigate the risk of injustice to the claimant during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction. \(6) But (at least since the middle of the 19th century) this has been made subject to the claimant's undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the claimant had not been entitled to restrain the defendant from doing what they were threatening to do. (7)The object of the interlocutory injunction is to protect the claimant against injury by violation of their right for which they could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in their favour at the trial; but the claimant's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from them having been prevented from exercising their own legal rights for which they could not be adequately compensated under the claimant's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. \(8) The court must weigh one need against another and determine where, "the balance of convenience" lies. \(9) There is no rule of law or practice to the effect that the court is not entitled to take any account of the balance of convenience unless it has first been satisfied that upon the evidence adduced by both the parties on the hearing of the application the applicant had satisfied the court that on the balance of probabilities the acts of the other party sought to be enjoined would, if committed, violate the applicant's legal rights. The purpose sought to be achieved by giving to the court discretion to grant interlocutory injunctions would be stultified if the discretion were clogged by such a technical rule. \(10) However, the court must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. \(11) So, unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the claimant has any real prospect of succeeding in their claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. \(12) It would be most exceptional for the House of Lords to give leave to appeal in a case which turned upon where the balance of convenience lay. The proposition in principle (3) is frequently stressed, particularly by appeal courts. For example, in *Sukhoruchkin v Van Bekestein \[2014\] EWCA Civ 399*, Sir Terence Etherton C., referred to relevant authority and stated (at para.32) that it is now well-established as a general principle that, on an application for an interim injunction, the court should not attempt to resolve "critical disputed questions of fact or difficult points of law" on which the claim of either party may ultimately depend, particularly where the point of law "turns on fine questions of fact which are in dispute or are presently obscure". The main significance of the *American Cyanamid* case lies in principles (9) and (10).  The case establishes that it is not necessary, as a threshold requirement, for the court to be satisfied that on the balance of probabilities the acts of the other party sought to be enjoined would, if committed, violate the applicant's legal rights. In the *American Cyanamid* case, in expounding the principles Lord Diplock said that, in addressing the threshold test, it is sufficient if the court asks itself: is the applicant's action "not frivolous or vexatious"? Is there "a serious question to be tried" (principle (10))? Is there "a real prospect that he will succeed in his claim for a permanent injunction at the trial" (principle (11))?. These may appear to be three subtly different questions. It has been said that they are intended to state the same test (see *Smith v Inner London Education Authority \[1978\] 1 All E.R. 411, CA*, at p.419 per Browne LJ). As explained by Smith J in *Vastint Leeds B.V. v Persons Unknown \[2018\] EWHC 2456 (Ch)*, there are at least **two necessary ingredients for a quia timet injunction application**: \(i) there must, if no actual damage is proved, be proof of imminent danger, in other words, a strong probability that, unless restrained by injunction, the defendant will act in breach of the claimant's rights; and \(ii) there must be proof that the damage will, if it comes, be very substantial: *Fletcher v Bealey (1885) 28 Ch. D. 688* at 698. The harm must be so serious that, if it occurs, it cannot be reversed or restrained by an immediate interim injunction and cannot be adequately compensated by damages: *Lloyd v Symonds \[1998\] EWCA 511* per Chadwick LJ. If there is no possible defence to the claim, there is no serious question to be decided at the trial. In those circumstances it is a misuse of the process of the court to withhold from the claimants an interim remedy, to which they are clearly entitled, while the normal stages preparatory to the trial of a genuinely contested action are being gone through with the inevitable delay (*Manchester Corp v Connolly \[1970\] Ch. 420, CA*, at p.426 per Lord Diplock). It follows that, if for that reason there is nothing to be decided at the trial, the questions of balance of convenience, status quo and damages being an adequate remedy do not arise; prima facie the claimants are entitled to an injunction **[Interim relief pending appeal]** 15.9.1 (first sub-paragraph to "...have been unsuccessful in asserting their right at trial") The court has a jurisdiction to grant interim protection by interim injunction to a party who has been unsuccessful at trial pending an appeal. An unsuccessful claimant may be granted interim protection if they are seeking to restrain some irreparable harm pending appeal, notwithstanding that they have been unsuccessful in asserting their right at trial ([*Novartis AG v Hospira UK Ltd (Practice Note) \[2013\] EWCA Civ 583*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2030554228&pubNum=6448&originatingDoc=I54BD285055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=516ccb51282d402c8a5c00f59dc081de&contextData=(sc.Category)); **[Guidelines -- Adequacy of DAMAGES as a REMEDY and the Balance of Convenience]** 15.10 In *Fellowes & Son v Fisher \[1976\] 1 Q.B. 122, CA*, at p.137, CA, Browne LJ set out Lord Diplock's guidelines in an enumerated series (much relied upon by judges in subsequent cases) as follows.  - (1)The governing principle is that the court should first consider whether, if the claimant succeeds at the trial, they would be adequately compensated by damages for any loss caused by the refusal to grant an interlocutory injunction. If damages would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the claimant's claim appeared to be at that stage. - \(2) If, on the other hand, damages would not be an adequate remedy, the court should then consider whether, if the injunction were granted, the defendant would be adequately compensated under the claimant's undertaking as to damages. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the claimant would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction. - \(3) It is where there is doubt as to the adequacy of the respective remedies in damages that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case. - \(4) Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. - \(5) The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies. - (6)If the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each party's case as revealed by the written evidence adduced on the hearing of the application. This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party's case is disproportionate to that of the other party. - (7)In addition to the factors already mentioned, there may be many other special factors to be taken into consideration in the particular circumstances of individual cases. **[Stage 1 -- Adequacy as a remedy of damages awarded at trial or payable under undertaking]** 15.11 In R v Secretary of State for Transport ex p Factortame Ltd (No2), supra, Lord Goff explained that Lord Diplock approached the matter in two stages, 1 -- consisting of guidelines (1) and (2) 2 -- the remainder of those guidelines. That is to say, Lord Diplock said the **relevance of the availability of an adequate remedy in damages, either to the claimant seeking the injunction or to the defendant in the event that an injunction is granted against him should be considered first**. As far as the claimant is concerned, the availability to him of such a remedy will normally preclude the grant to him of an interim injunction. If that is not so, then the court should consider whether, if an injunction is granted against the defendant, there will be an adequate remedy in damages available to him under the claimant's undertaking in damages; if so, there will be no reason on this ground to refuse to grant the claimant an interim injunction. **[Stage 2 -- Balance of convenience]** 15-12 As Lord Goff further explained in [*R. v Secretary of State for Transport, Ex p. Factortame Ltd (No.2)*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=1990191748&pubNum=4651&originatingDoc=I7C115D4055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=bcd193c03390414190b6d3d52545189b&contextData=(sc.Category)), op. cit., if there is doubt as to the adequacy of either or both of the respective remedies in damages (see guideline (2)), then the court proceeds to the second stage, that is to say, to the "balance of convenience" and asks the question "where does the balance of convenience lie?" In practice, it is often hard to tell whether either or both of the respective remedies will be adequate. Consequently, it is frequently the case that the court is enjoined (by guideline (3)) to proceed to this stage and to consider the balance of convenience issue. The use of the word "convenience" here reflects [s.37(1) of the Senior Courts Act 1981](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111235116&pubNum=121177&originatingDoc=I7C115D4055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=bcd193c03390414190b6d3d52545189b&contextData=(sc.Category)), where it is stated that an injunction may be granted if it appears to the court "just and convenient to do so". In some cases, it has been said that the balance to be struck is more fundamental, more weighty, than mere "convenience", and is better described as the "balance of the risk of doing an injustice" raising the question: "which course carries the lower risk of injustice"? The willingness of the applicant to give the respondent a cross-undertaking in damages is a very material consideration for the court in determining whether or not the interim injunction should be ordered. The fact that an ultimately unsuccessful claimant will have to compensate the defendant for losses suffered by them through their complying with the interim remedy for the duration of the period during which it took effect is a major factor in assessing the balance of convenience **[Preserving the status quo ante]** 15-14 Guideline (4) states that where other factors appear to be evenly balanced it is 'a counsel of prudence' to take such measures as are calculated to preserve the status quo. However, in a given case the preservation of the status quo may on balance clearly incur the greater risk of injustice. Further, parties should not be encouraged to believe that the court will be unwilling to undo by interlocutory injunction what would otherwise be a fait accompli (*Thompson v Park \[1944\] 1 K.B. 408, CA*), especially where one party, by conduct that reflects little credit on them, has "stolen a march" on the other. **['Relative strength of each party's case' ]** 15-15 (first sub-paragraph ending "...except for the limited purposes permitted by guideline (6)." Guideline (6) is cast in terms designed to restrict a consideration of the "relative strength of each party's case". This factor has to be disregarded except as a last resort when the balance of convenience is otherwise even in the circumstances stated in guideline (6) and even then it should not be taken into account unless it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party's case is disproportionate to that of the other party.  **[INTERLOCUTORY RULING in effect disposing of action finally]** 15-17 In a given case, an application for an interlocutory injunction may be successful; on the other hand, it may not. The disposition of the application one way or the other is likely to have a bearing on the subsequent progress of the proceedings. **[A -- Likelihood of claimant succeeding at trial ]** 15-18 (first two sub paragraphs to "it is for the judge to control the extent of the inquiry undertaken") Cases can arise in which, as a practical matter, the grant or refusal of an injunction at the interlocutory stage will, in effect, dispose of the action finally in favour of whichever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party's interest to proceed to trial. However, in *N.W.L. Ltd v Woods \[1979\] 1 W.L.R. 1294, HL*, which was such a case, Lord Diplock said (at p.1306) that in these circumstances "the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial" is a factor which should be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other. In Lord Diplock's view this is not inconsistent with the *American Cyanamid* case because there was nothing in the decision in that case to suggest that the judge ought not to give "full weight to all the practical realities of the situation to which the injunction will apply". So, the position is that where the grant or refusal of an interlocutory injunction will effectively end the action, it is appropriate for the court in assessing the balance of convenience to investigate "the degree of likelihood" of the claimant succeeding at trial. However, such investigation need not, and perhaps should not, amount to a trial of the action.  **[C -- Effect of delay to trial ]** 15-20 (first sub-paragraph ending, "...until the very end of the period of the contractual restriction.") In a given case, the question whether or not the grant or refusal of an interlocutory injunction will in effect dispose of the action finally may be affected by the length of delay to trial ([*Lansing Linde Ltd v Kerr \[1991\] 1 W.L.R. 251; \[1991\] 1 All E.R. 418, CA*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=1990193163&pubNum=4891&originatingDoc=I593717B055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=5ac0f5a93f884524b0be0b6b2ace8051&contextData=(sc.Category)), at p.257 and p.423, CA, per Staughton LJ). Although it may be true to say that, since the coming into effect of the [CPR](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0294884976&pubNum=121175&originatingDoc=I593717B055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5ac0f5a93f884524b0be0b6b2ace8051&contextData=(sc.Category)), generally speaking cases proceed more expeditiously to trial than before, cases can still arise in which delay to trial is an important factor. **[MANDATORY INJUNCTIONS]** 15-24 (first five sub-paragraphs ending "(4) sufficiently outweigh the risk of injustice if it is granted.") A mandatory injunction directs that a positive act should be done to repair some omission or to restore the prior position by undoing some wrongful act. Whilst traditionally, power of the court to grant a positive injunction has been regarded as a more serious power than the power to grant a negative injunction, it was pointed out by the Privy Council in *National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Practice Note) \[2009\] UKPC 16; \[2009\] 1 W.L.R. 1405; \[2009\] Bus. L.R. 1110, PC* that the question is not a semantic one (positive or negative, mandatory or prohibitory) but one of seeking to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld (as the case may be). The basic principle is that the court "should take whatever course seems likely to cause the least irremediable prejudice to one party or the other" (above.). The jurisdiction of the court to grant an injunction enshrined in s.37(1) of the Senior Courts Act 1981 is stated widely and in general terms. The court may by order "whether interlocutory or final" grant an injunction "in all cases in which it appears to the court to be just and convenient to do so". This has been regarded as quite sufficient to give the court jurisdiction to grant, not only prohibitory injunctions, but also mandatory injunctions. Further, it has been regarded as sufficient to give the court jurisdiction to grant a remedy in the form of a mandatory injunction, not only at a trial (as a final remedy), but also upon an interlocutory application (as an interim remedy). Whilst the proposition that formerly held good, namely that where an interim mandatory injunction is sought the balance of convenience test requires that it should not be granted unless there is "high degree of assurance" that at the trial it will appear that the injunction was rightly granted, has been rejected, it continues to be a relevant factor in the limited sense described below. In Nottingham Building Society v Eurodynamics Systems \[1993\], the judge said that **the balance of convenience was to be determined in accordance with the following principles**:  (1) The overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be "wrong" in the sense of granting an interlocutory injunction to a party who fails to establish their right at trial (or would fail if there was a trial) or, alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial.  (2) In considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo.  (3) It is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the claimant will be able to establish this right at a trial. That is because the greater the degree of assurance the claimant will ultimately establish their right, the less will be the risk of injustice if the injunction is granted.  (4) But, even where the court is unable to feel any high degree of assurance that the claimant will establish their right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted. **[CROSS-UNDERTAKING as to Damages]** 15-25 The court is normally only prepared to grant an interim injunction if the applicant is prepared to offer a cross-undertaking in damages (so-called to identify that the undertakings are given by, and are binding on, the applicant) The court has no power to order a party to give a cross-undertaking: it is something than an applicant must be prepared to give in return for the grant of an injunction. **[Introduction ]** 15.26 The Senior Courts Act 1981 s.37(2) states that an order granting an interlocutory injunction may be made either unconditionally or on such terms and conditions as the court thinks just. In *American Cyanamid Co v Ethicon Ltd \[1975\] A.C. 396, HL*, Lord Diplock explained (at p.406) that, where a claimant is granted relief by way of interlocutory injunction, the practice is (and has been since at least the middle of the nineteenth century) to make this subject to a condition in the form of the claimant's undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it subsequently transpires that it ought not to have been granted. **[Undertakings in interim injunctions generally]** 15-27 A cross-undertaking is not given by the applicant to the respondent; it is given by the applicant to the court. The terms of the cross-undertaking are for the court. Three things follow from this. First, where it is a matter for doubt, the proper interpretation of the cross-undertaking is not a matter of divining the mutual understanding of the parties to the proceedings. Secondly, it may be enforced by one who is not a party to the proceedings in those circumstances where it is given, not merely for the benefit of the respondent, but for their benefit as well. Thirdly, when an undertaking given to the court (for example to issue a claim form) is not complied with, there must be an enquiry by the court as to why that happened and what, if any, sanction or consequential order should be imposed. Such undertaking has been described as the "price" of an injunction (*Tucker v New Brunswick Trading Company of London, (1890) 44 Ch.D. 249, CA*, at p.253, per Lindley LJ). Upon the respondent being required to undertake to conduct themselves in accordance with the terms of the injunction, the applicant undertakes (cross-undertakes) to pay damages if, in the event, required to do so. If the applicant is unwilling to undertake to pay the price, they do not get the injunction. The cross-undertaking is the quid pro quo for the court making an interim order without having determined the facts or the claimant's entitlement to it. As with other undertakings given to the court, an undertaking as to damages given by a claimant cannot be varied, but a claimant who wishes to be ceased to be bound may apply to the court for "release" from it (or "discharge" of it), accompanying that application with an offer of a further undertaking in different terms. The court cannot compel an applicant to give a cross-undertaking, but it can refuse to grant an injunction unless they do. Where the court is minded to impose such a condition it is a matter for the applicant to decide whether they are prepared to give it and, if it is insisted upon, to provide security. If they are not, the injunction does not go. Usually, the cross-undertaking will be expressly given by the applicant and will be expressly incorporated in the court's order. Where it is not expressly given, the court may enforce an implied undertaking even if it had not been included in the order, unless the contrary had been agreed and expressed at the time (see SmithKline Beecham Plc v Apotex Europe Ltd, op. cit., at paras 26 to 37 and cases cited there). As an extra condition, the claimant may be required to fortify the undertaking by giving security (see further para.15-32 below). The point of a cross-undertaking in damages is to provide a means of compensation for loss if it occurs in relation to the injunction or undertaking. To that extent the court has, if necessary, to form a view as to the kind and degree of loss that may result in deciding whether an undertaking has sufficient value (with or without fortification) (*Re DPR Futures Ltd \[1989\] 1 W.L.R. 778* (Millett J) **[E -- Applicant unable to offer Credible Undertaking]** 15-30 Where a claimant brings an action for a permanent injunction, normally, and for obvious reasons, they will apply for an interlocutory injunction. Where an applicant for an interim injunction is impecunious, or of limited means, they may be unable to give a credible undertaking, or unwilling to give an undertaking to the limit of their means. In [*Allen v Jambo Holdings Ltd \[1980\] 1 W.L.R. 1252; \[1980\] 2 All E.R. 502, CA*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=1980026585&pubNum=4891&originatingDoc=I580686F055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=c0512d21647048fb95b126ed13513315&contextData=(sc.Category)), it was said that the court will not deny a legally aided claimant an interlocutory injunction (in this case, a freezing injunction), to which they would otherwise be entitled simply on the ground that their undertaking in damages would be of limited value, since questions of financial stability ought not to affect the position in regard to what is the essential justice of the case. The position was clarified in [*R. (Ellson) v Greenwich LBC, \[2006\] EWHC 2379 (Admin),*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2010425631&pubNum=6821&originatingDoc=I580686F055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=c0512d21647048fb95b126ed13513315&contextData=(sc.Category)) when it was said that, where an impecunious claimant was applying for an injunction, the court would know that, although the claimant was putting on the line all the assets that they had, thus showing how strongly they felt about the claim that they were making, they would not in practice be able to meet the damages. That would be a factor to be taken into account by the court in deciding whether or not to make the order. If an applicant for an injunction says that they do not wish to, or are not in a position to give an unlimited cross-undertaking in damages, the burden is on them to show that external funds are not available, and why they should be able to provide a cross-undertaking in a lesser amount (*JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev \[2015\] EWCA Civ 139; \[2016\] 1 W.L.R. 160*, CA, at \[85\]).  Cases excepted from the *Cyanamid* guidelines ·      *American Cyanamid Co (No 1) v Ethicon Ltd* \[1975\] UKHL 1 Also, please download court form N16A (general form of injunction) [Form N16A](https://elite.law.ac.uk/bbcswebdav/pid-15832649-dt-content-rid-355859141_4/xid-355859141_4) and bring this to the workshop.