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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Emergency relief - overviewInterim injunctions – guiding principles
Interim injunctions (previously called 'interlocutory injunctions') are temporary court orders used to regulate the position between the parties before trial. There are different types in injunctions such as prohibitory and mandatory. The principles which apply to each type if injunction differ and it is important to understand the differences and the guidance provided by the court and statute.
Interim injunctions – when to apply and on notice applications
Interim injunctions may be sought before prior to and during proceedings. The CPR sets out the rules in relation to aspects of the application such as whether notice is required, what forms to use for the application, what evidence is required in support of the application and service. It is important to ensure that in making such an application that all aspects of the process are considered including the provision of a bundle of documents and skeleton arguments.
Interim injunctions – emergencies and without notice applications
An interim injunction required urgently will require knowledge of the arrangements that the court has in place to deal with emergency applications. Generally they will all be without notice to the other side and so it is important to ensure that the due processes and rules have been followed when making such an application such as the duty of full and frank disclosure.
Interim injunctions – hearings
There are a number of issues to consider in relation to the hearing ranging from which court should it be in and which judge should hear the application through to what the judge will deal with, what the costs will be and what happens if the application is dismissed. The CPR and various guides such as the Chancery Guide provide rules and guidance on these issues.
Freezing injunctions – introduction
A freezing injunction (formerly called a Mareva injunction) is an interim order preventing a party from removing assets located within England and Wales, or from dealing with assets wherever they are located. Its purpose is to preserve assets for the benefit of the claimant in the event that he wins a judgment and needs to recover damages and costs.
Freezing injunctions – requirements
There are specific requirements which if not complied with will mean that a freezing injunction will not be ordered. The requirements need to be set out in the evidence supporting the application. Even if all of the requirements are shown the court has a discretion to refuse to grant a freezing order if it does not consider that it is just and convenient to do so.
Freezing injunctions – drafting
The standard-form freezing injunction order annexed to CPR PD 25 should always be used and should only be modified where it is necessary to suit the circumstances of the case. The order must contain specific information and undertakings and it is important to make sure that the relevant CPR and case authorities are considered when drafting.
Freezing injunctions – application
An application is almost always made without notice. The freezing order must be supported by an affidavit NOT a witness statement. There is a duty to make full and frank disclosure in the application. Where there is a failure to do so the court has a discretion to discharge the injunction. Applications are made in the High Court although in very limited circumstances they can be made in the county court.
Freezing injunctions – varying and discharging
A defendant applying to vary or discharge a freezing injunction should notify the parties.
An injunction may be varied where:
it is more onerous to the defendant than is necessary
it imposes unnecessary obligations or hardship on a third party
there are drafting failures (eg omission of necessary provisos such as
An injunction may be discharged for example where:
it should not have been made because one of the requirements was not made out. For example the claimant does not have a good arguable case
the defendant has given the claimant sufficient security for the claim for example by a payment into court
Freezing injunctions – jurisdiction
In exceptional circumstances a freezing injunction can be extended to prevent a defendant from moving and dealing with its assets in any jurisdiction in the world. This is known as a worldwide freezing order (WFO). The Court of Appeal set out the guidelines applicable to obtaining a WFO in the Dadourian case.
If proceedings have been commenced in another jurisdiction the High Court can grant a freezing injunction in support of those foreign proceedings. However, courts will exercise particular caution before doing so.
Search orders - the order
A search order (previously an Anton Pillar order), enables a party to enter the defendant's premises to preserve evidence which might be destroyed or concealed by the defendant. A draconian remedy, which should be exercised with caution, it is most frequently used in cases of breach of intellectual property rights. Search orders are mandatory. The principles applied in determining whether to grant a search order are set out in the Anton Piller case.
A standard form order should be used and only modified to suit the circumstances of the case and specific undertakings must be given by the claimant, the claimant's solicitor and the supervising solicitor.
The order may only be served on the defendant between 9.30am and 5.30pm Monday to Friday.
Search orders - execution of the order
A search order does not authorise the use of force to gain access. The supervising solicitor must explain the terms of the order to the defendant and provide a reasonable time to enable the defendant to obtain legal advice if required. The terms of the order must be strictly complied with.
The defendant can refuse to provide information by relying on the privilege against self-incrimination rule, if a criminal charge is a genuine possibility.
In practice, a search order is an immediate remedy and will often have been executed before there is an opportunity to vary or discharge it. Notwithstanding this a party can apply to vary or discharge an order
Preserving property and interim delivery up of goods
An order for the preservation of property is used to preserve evidence.
An order for the interim delivery up of goods, where goods are being wrongfully interfered with, operates in a similar way to freezing injunctions but actually requires the defendant to deliver up the goods to the claimant or someone else specified in the order, instead of just restraining the defendant from dealing with the goods or disposing of them.
Specific rules in CPR 25 set out when an order can be sought and the procedure to be followed.
Interim payments are made most frequently in personal injury cases. An interim payment may be ordered where:
the claimant is likely to succeed at trial
it would be unjust to delay payment until after trial, and
it would enable the claimant to pay for treatment, save assets which would otherwise
There is some overlap between summary judgment and interim payments.
CPR 25 and the Social Security (Recovery of Benefits) Act 1997 set out the rules and regulations required when considering or making an interim payment.
Emergency relief – review of interim decisions
When an interim application has been successful a court may reconsider its decision at any point up until the order has been drawn up. After that point the court, in certain circumstances, has the power to vary or revoke an interim order. An interim order may also be renewed in limited circumstances.
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