Lecture 8

General Rules about Application for Court Orders

23.1 Definitions:

 Application Notice: Document indicating the applicant's intention

to seek a court order.
 Hearing: Occasion where any interim or final decision is made by a
judge, allowing individuals to be heard in person, by telephone,
video, or other means facilitating simultaneous communication.
 Respondent: Person against whom the order is sought, including
any other individual directed by the court.

23.2 Where to Make an Application:

 General Rule: Applications should be made to the court or County

Court hearing centre where the claim was initiated.
 Transferred Claims: If a claim has been transferred to another
court or County Court hearing centre, applications should be
directed there unless a valid reason justifies applying to a different
court.
 Fixed Trial Date: If parties have a set trial date, applications must
be made to the court where the trial is scheduled.
 Pre-Claim Applications: Applications made before initiating a
claim should go to the court where the claim is most likely to begin,
unless a compelling reason necessitates applying elsewhere.
 County Court Pre-Claim Applications: Pre-claim applications in
the County Court can be made at any County Court hearing centre,
unless specified otherwise by law, rule, or practice direction.
 Applications during Enforcement Proceedings: Applications
made after the commencement of judgment enforcement
proceedings should be directed to the court or County Court hearing
centre handling the enforcement, unless stated otherwise by law,
rule, or practice direction.

23.8 Applications Which May be Decided Without a Hearing:

 Conditions for No Hearing: The court may handle an application

without a hearing if:
 (a) Parties agree on the order's terms.
 (b) Parties agree to waive a hearing.
 (c) The court deems a hearing unnecessary.
 Waiver Consequences: If parties agree to waive a hearing, a party
can't apply to set aside, vary, or stay the order without the court's
permission.
  Right to Challenge Without Hearing: If the court decides an
application without a hearing and without allowing parties to make
representations:
 (a) Affected party may apply to set aside, vary, or stay the
order within a specified period by the court.
 (b) If no period specified, application must be within 7 days
after order service.
 (c) The order must include a statement about this right.
 Consideration of Application: An application under (3) is
reviewed at an oral hearing unless the court determines it's totally
without merit.
 Reconsideration: If the court deems the application totally without
merit, a reconsideration application can be made under (3) without
an oral hearing.

23.9 Service of Order and Application Where Application Made

Without Notice:

 Scope: Applies when the court handles an application made without

serving a copy of the application notice.
 Service Requirements: If the court issues an order (granting or
dismissing the application), a copy of the application notice and any
supporting evidence must be served with the order on any party or
person affected.
 Statement of Right: The order must include a statement about
the right to apply to set aside or vary the order under rule 23.10.

23.10 Application to Set Aside or Vary Order Made Without

Notice:

 Scope: Pertains to individuals not served with the application notice

before an order was issued under rule 23.9.
 Right to Apply: Those not served with the application notice may
apply to have the order set aside or varied.
 Application Period: Unless directed otherwise by the court, the
application must be made within 7 days after the order was served
on the applicant.

23.11 Power of the Court to Proceed in the Absence of a Party:

 Proceeding in Absence: If the applicant or any respondent fails to

attend the application hearing, the court has the authority to
proceed in their absence.
 Order Issuance: If an order is made during the absence of the
applicant or respondent, the court can, upon application or on its
own initiative, re-list the application.
 (Note: Part 40 addresses the service of orders.)
23.12—Applications that are Totally Without Merit:

 If the court dismisses an application (including an application for

permission to appeal or for permission to apply for judicial review)
and deems it totally without merit:
 The court’s order must record that fact.
 The court must consider whether it is appropriate to make a
civil restraint order.

25.1—Orders for Interim Remedies (Interim Injunctions):

 The court may grant the following interim remedies:

 An interim injunction.

25.2—Time when an Order for an Interim Remedy may be Made:

 An order for an interim remedy can be made at any time, including:

 Before proceedings are initiated.
 After judgment has been rendered. (Rule 7.2 defines the start
of proceedings as when the court issues a claim form.)
 Exceptions and Conditions:
 Subject to any contrary rule, practice direction, or enactment:
 Interim remedies can be granted before a claim is
initiated only if:
 The matter is urgent, or
 It is in the interests of justice to do so.
 A defendant cannot apply for any of the orders listed in
Rule 25.1(1) before filing an acknowledgment of service
or a defence. (Part 10 covers filing an acknowledgment
of service, and Part 15 covers filing a defence.)
 Directions for Commencing a Claim:
 The court should provide directions requiring a claim to be
initiated when granting an interim remedy before a claim has
been filed.
 However, the court is not required to direct that a claim be
initiated if 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).

25.3—How to Apply for an Interim Remedy:

 Granting on Application Without Notice:

  The court may grant an interim remedy on an application
made without notice if it deems there are valid reasons for not
providing notice.
 Supporting Evidence:
 An application for an interim remedy must be backed by
evidence, unless the court directs otherwise.
 Application Without Notice:
 If the applicant opts for an application without giving notice,
the supporting evidence must articulate the reasons for not
providing notice.
 Reference:
 Part 3 outlines the general powers of the court.
 Part 23 contains general rules regarding making applications.

Urgent Applications and Applications Without Notice:

4.1 Categories:

 These applications divide into two categories:

 (1) Applications when a claim form has already been issued.
 (2) Applications when a claim form has not yet been issued.
 Notice of the application is not given to the respondent in both
cases.

4.2 Handling Urgent Cases:

 Normally, these applications are addressed at a court hearing, but

extremely urgent cases may be handled via telephone.

4.3 Applications After Issuance of Claim Form:

 For applications dealt with at a court hearing post the issue of a

claim form:
 The application notice, supporting evidence, and a draft order
should ideally be filed with the court two hours before the
hearing.
 If the application is made before issuing the application notice,
a draft order should be provided at the hearing, with the
application notice and evidence to be filed promptly
afterward.
 Unless secrecy is paramount, the applicant should make
informal efforts to notify the respondent of the application.
4.4 Applications Before Issuance of Claim Form:

 In addition to the provisions outlined in 4.3:

  Unless the court directs otherwise, the applicant must
undertake to the court to issue a claim form immediately, or
the court will give directions for commencing the claim.
 Ideally, the claim form should be served along with the
injunction order.
 An order issued before the claim form should be titled "the
Claimant and Defendant in an Intended Action."

Orders for Injunctions:

5.1 Requirements for Injunction Orders:

 Any injunction order, unless specified otherwise by the court, must

include:
 An undertaking by the applicant to pay damages deemed
appropriate by the court.
 If made without notice to any other party, an undertaking to
serve the application notice, supporting evidence, and any
order made on the respondent promptly.
 A return date for a further hearing if made without notice.
 If made before filing the application notice, an undertaking to
file and pay the appropriate fee promptly.
 If made before the issue of a claim form, either an
undertaking to issue and pay the fee promptly or directions
for the commencement of the claim.

5.2 Consideration for Damages:

 The court should consider requiring an undertaking by the applicant

to pay damages sustained by any person other than the respondent,
including other parties to the proceedings or anyone who may suffer
loss due to the order.

5.3 Special Considerations for Aarhus Convention Claims:

 In Aarhus Convention claims, if the court deems an injunction

necessary to prevent significant environmental damage:
 The court must consider the need for the overall terms of the
order not to make continuing with the claim prohibitively
expensive for the applicant.
 Directions should ensure prompt hearing of the case.
 Proceedings are deemed prohibitively expensive if costs
exceed the applicant's financial resources or are objectively
unreasonable.
 Financial support provided or likely to be provided to the
applicant will be taken into account by the court when
considering financial resources.
5.4 Duration of Injunction Orders:

 An injunction order made in the presence of all parties or at a

hearing where they have been notified may specify its effectiveness
until trial or until further order.

5.5 Clarity of Injunction Orders:

 Every injunction order must explicitly outline the actions the

respondent must take or refrain from doing.

Notice in Applications for Court Orders:

 Rule 25.3(1) offers an exception to the standard requirement

stipulated in rule 23.4(1), which mandates the service of the
application notice on each respondent. This exception allows for
applications to be made without notice in certain circumstances.
 Informal notification to respondents is highly recommended,
particularly in cases where formal notice is not feasible due to
urgency or other valid reasons. The advent of mobile
communication has made informal notice more practical and
accessible.
 Practice Direction 25A (Injunctions) provides comprehensive
guidance on urgent applications and those made without notice. It
delineates the procedural aspects and expectations surrounding
such applications.
 While applications may be made without notice if there are
justifiable reasons, courts emphasize the importance of informal
notification to respondents. Failure to provide informal notice may
raise concerns about procedural fairness and compliance with court
directives.
 Exceptions for proceeding without notice typically involve scenarios
where providing notice could undermine the efficacy of the
injunction sought or where time constraints preclude the possibility
of issuing formal notice before the injunction is needed.
 In National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Practice
Note) [2009] UKPC 16, the Privy Council highlighted that courts
should refrain from entertaining applications made without notice
unless there are compelling reasons. This case emphasized the
need for balancing the urgency of the situation with the principles of
procedural fairness.
 O’Farrell v O’Farrell [2012] EWHC 123 (QB) and Jeeg Global Ltd v
Hare [2012] EWHC 773 (QB) underscored the importance of informal
notification to respondents in applications for court orders. These
cases emphasized the practicality and necessity of informal
communication, especially in today's digital age.
  Practice Guidance: Interim Non-Disclosure Orders, particularly in
paragraphs 18 onwards, provides detailed instructions and
expectations regarding informal notification to respondents in
applications for court orders. It outlines the duties and
responsibilities of applicants in ensuring adequate and timely
notification to all concerned parties.

Interim Remedy Order Hearings in Private:

 Rule 39.2(1) establishes the general principle that hearings,

including those for interim remedy orders, are to be conducted in
public. However, exceptions to this rule exist under rule 39.2(3),
which outlines circumstances permitting private hearings.
 Interim remedy order hearings may be held in private under
exceptional circumstances. Such circumstances include instances
where publicity would undermine the purpose of the hearing,
especially in cases involving sensitive or confidential information.
 Hearings conducted for applications made without notice may be
deemed unjust to respondents if held in public, warranting a private
hearing instead. This ensures fairness and protects the interests of
all parties involved.
 Confidential information, particularly pertaining to personal financial
matters, may necessitate a private hearing to prevent damage to
confidentiality. Maintaining the privacy of such information is crucial
for upholding the integrity of the legal process.
 In certain cases, the objective of preserving confidentiality and
preventing premature disclosure of sensitive information may
require the court to sit in private, as demonstrated in Bank of
Scotland v A. Ltd [2001] EWCA Civ 52. This case involved a financial
institution's application where money laundering was suspected,
highlighting the importance of discretion in handling sensitive
matters.
 The primary aim of holding hearings for interim remedy orders,
whether in public or private, is to prevent the disclosure of sensitive
information, at least temporarily. This objective underscores the
need for discretion and careful consideration of the circumstances
surrounding each case.

Documentation Required in Interim Application:

 Application Notice Filing:

 Rule 23.3 mandates that an applicant must file an application
notice, except where specified otherwise by a rule, practice
direction, or court dispensation.
 Notice of Application:
  Rule 23.4 stipulates that a copy of the application notice must
be served on each respondent, unless permitted otherwise by
a rule, practice direction, or court order.
 Content of Application Notice:
 Rule 23.6 outlines the necessary contents of an application
notice, requiring it to specify:
 The order sought by the applicant.
 Brief reasoning behind the applicant's request for the
order.
 Additionally, Part 22 necessitates an application notice to be
accompanied by a statement of truth if the applicant intends
to rely on its contents as evidence.
 Verification by Statement of Truth:
 Part 22 further underscores the importance of verification,
stating that an application notice must be accompanied by a
statement of truth if the applicant intends to rely on the
matters outlined therein as evidence.

Service of Application Notice:

 Timely Service:
 Rule 23.7(1) mandates that a copy of the application notice
must be served:
 As soon as practicable after filing.
 At least 3 days before the court is scheduled to address
the application, unless a different time limit is specified
in a rule, practice direction, or court order.
 Supporting Written Evidence:
 If the court is responsible for serving a copy of the application
notice, the applicant must file any supporting written evidence
when filing the application notice (Rule 23.7(2)).
 When serving the application notice, it must be accompanied
by copies of:
 Any supporting written evidence.
 Any draft order attached to the application (Rule
23.7(3)).
 Shorter Notice Period:
 In cases where the period of notice provided is shorter than
required by the rules or practice direction, the court has
discretion to determine if sufficient notice has been given and
proceed with the application (Rule 23.7(4)).
 Exemptions from Re-filing and Re-serving:
 Rule 23.7(5) specifies that written evidence does not need to
be re-filed or re-served if it has already been filed or served on
a party.
Supporting Evidence for Interim Remedies:

 Requirement for Evidence:

 An application for an interim remedy must be supported by
evidence unless the court directs otherwise (Rule 25.3.3).
 Form of Evidence:
 Rule 32.6(1) generally dictates that evidence for hearings
other than trial, including proceedings for interim remedies,
should be presented through witness statements, unless
specified otherwise by the court, a practice direction, or
another enactment.
 Alternative Evidence Forms:
 Parties may choose to rely solely on:
 Matters outlined in their statement of case, or
 Their application, provided these are verified by a
statement of truth (Rule 32.6(2) and Rule 22.1(1) and
(3)).
 Consequences of False Statements:
 Parties making false statements in applications verified by a
statement of truth may face contempt of court proceedings if
they lack an honest belief in their truthfulness (Rule 32.14(1)).
 Special Requirements for Certain Interim Remedies:
 Rule 25.5 imposes specific evidence requirements for interim
remedies mentioned therein.
 Practice Direction Guidance:
 For detailed guidance on evidence requirements for interim
injunctions, freezing injunctions, and search orders, refer to
Practice Direction (Interim Injunctions), paragraph 3.
 Preparation by Solicitors:
 Consideration should be given to whether written evidence
can be provided by the applicant's solicitor rather than
directly by the applicant (see "Preparation and Content of
Witness Statements," para. 32.4.5).

Period of Notice for Interim Application:

 Service Requirements:
 A copy of the application notice must be served promptly after
filing (Rule 23.7(1)(a)).
 Notice must be provided at least 3 days before the court
addresses the application, unless a different timeframe is
specified by a rule, practice direction, or court order (Rule
23.7(1)(b)).
 Accompanying Documentation:
 When serving the application notice, it must be accompanied
by:
  Copies of any supporting written evidence.
 Copies of any draft order attached to the application
(Rule 23.7(3)).
 Court's Discretion:
 If the period of notice is shorter than required by the rules or
practice directions, the court may still proceed with the
application if it deems sufficient notice has been given based
on the circumstances (Rule 23.7(4)).
 Exemptions:
 Written evidence does not need to be filed again if it has
already been submitted, nor does it need to be served on a
party who has already received it (Rule 23.7(5)).

These provisions ensure that parties have adequate time to prepare and
respond to interim applications, promoting fairness and procedural
regularity in court proceedings.

Duty of Full and Frank Disclosure in Applications Without Notice:

 Legal Obligation:
 Applicants, including those representing themselves, have a
duty to provide complete and candid disclosure of all relevant
matters on applications made without notice (Fitzgerald v
Williams [1996] Q.B. 657, CA).
 Scope of Disclosure:
 This includes disclosing any facts or laws that might affect the
judge's decision on granting relief or determining what relief
to grant (Fitzgerald v Williams [1996] Q.B. 657, CA).
 Applicants must disclose significant factual, legal, and
procedural aspects of the case to the court (Memory Corp Plc
v Sidhu (No.2) [2000] 1 W.L.R. 1443, CA).
 Policy Consideration:
 The duty aims to minimize the risk of errors when the court
makes orders affecting the interests of a party who hasn't had
the opportunity to be heard (Memory Corp Plc v Sidhu (No.2)
[2000] 1 W.L.R. 1443, CA).
 Obligation to the Court:
 The duty is owed to the court itself to maintain the integrity of
the judicial process and protect the interests of those affected
by the order sought (Re OJSC ANK Yugraneft [2008] EWHC
2614 (Ch)).
 Consequences of Breach:
 Breach of this duty may lead to the court setting aside its
order and refusing to renew it, particularly in cases of freezing
and search orders (Re OJSC ANK Yugraneft [2008] EWHC 2614
(Ch)).
 Guidance from Case Law:
  In Marc Rich & Co Holding GmbH v Krasner [1999] C.L.Y. 487,
Bingham J outlined specific requirements for applicants:
 Demonstrate utmost good faith.
 Summarize the case and evidence in support of the
application.
 Identify crucial points for and against the application.
 Investigate the claim and potential defenses.
 Disclose all facts relevant to the judge's decision.
 Advocate's Duty:
 Advocates have a responsibility to ensure correct legal
procedures, prepare written arguments, and draw the court's
attention to relevant evidence and legal principles (Memory
Corp Plc v Sidhu (No.2) [2000] 1 W.L.R. 1443, CA).
 Overlap with Litigant's Responsibility:
 The duty extends beyond factual matters, and there is often
overlap between the litigant's responsibility and the
advocate's duty to the court (Memory Corp v Sidhu (No.2)
[2000] 1 W.L.R. 1443, CA).

Applicant's Disclosure Duties on Short Notice Applications:

 Service of Application Notice:

 Rule 23.7 mandates that an application notice must be served
promptly after filing, and at least three days before the court
deals with the application, unless another time limit is
specified. Practice Direction 25A, para. 2.2, requires the
evidence to be served accordingly.
 Policy Considerations:
 The rules aim to balance the need for prompt action by the
applicant with the respondent's right to sufficient notice,
ensuring fairness and efficiency in proceedings.
 Court's Discretion on Short Notice:
 Even if the notice period is shorter than three days, the court
may deem it sufficient based on the circumstances of the case
and proceed to deal with the application (Rule 23.7(4)).
 Disclosure Despite Short Notice:
 When a respondent receives short notice of an application for
an interim remedy, they may not have adequate time to
prepare and present all relevant legal and factual information.
 Duty of Full and Frank Disclosure:
 Despite short notice, the applicant remains obligated to make
full and candid disclosure of all relevant matters.
 Respondent's Representation Doesn't Alter Disclosure Duty:
 The fact that a respondent is represented at the hearing and
makes submissions does not absolve the applicant from their
duty of full disclosure (CEF Holdings Ltd v Mundey [2012]
EWHC 1524 (QB)).
  No Duplicate Information Requirement:
 However, the applicant is not required to provide duplicate
information if the respondent adequately addresses all factual
and legal issues at the hearing, as would have been necessary
for the applicant to fulfill their disclosure obligations (CEF
Holdings Ltd v Mundey [2012] EWHC 1524 (QB)).
 Incentive for Respondents to Appear:
 Releasing the applicant from their duty to disclose despite
short notice would provide an incentive for respondents not to
appear at the hearing.
 Case Law Example:
 In CEF Holdings Ltd v Mundey [2012] EWHC 1524 (QB), Silber J
emphasized that even on short notice, the duty of full and
frank disclosure rests with the applicant.

Discharge of Injunction for Material Non-disclosure:

 Legal Principle:
 In cases of interim injunctions, failure to observe the duty of
full and fair disclosure may lead to the court discharging the
injunction.
 No Excuse for Non-disclosure:
 Ignorance of the importance of omitted matters is not a valid
excuse for the applicant. The duty of disclosure applies
regardless of the applicant's awareness.
 Consequences of Non-observance:
 Even if the court believes that the injunction would have been
granted even with full disclosure, failure to observe the duty
may still lead to discharge of the injunction.
 Judicial Precedent:
 Scrutton LJ restated this principle in R. v Kensington Income
Tax Commissioners Ex p. de Polignac [1917] 1 K.B. 486, CA.
Jacob J also reviewed the authorities in OMV Supply & Trading
AG v Clarke [1999] C.L.Y. 435.
 Purpose of the Rule:
 Deprivation of Improper Advantage: Discharging the
injunction deprives the wrongdoer of any improperly obtained
advantage.
 Deterrent Effect: It acts as a deterrent, ensuring that
applicants realize their duty and the potential consequences,
including liability in costs.
 Case Law Example:
 In Brink’s-MAT Ltd v Elcombe [1988] 1 W.L.R. 1350, this
principle was exemplified, emphasizing the consequences of
failing to fulfill the duty of disclosure.
This rule serves to maintain the integrity of the legal process, ensuring
fairness and preventing abuse of court procedures.

Applications to Set Aside for Material Non-disclosure:

 Judicial Criticism:
 Judges have criticized litigants who, upon being subject to
interim injunctions, allege material non-disclosure on weak
grounds or seek discharge based on minor errors.
 Disproportionate Conduct:
 Litigants engaging in such behavior may face criticism for
disproportionate conduct in legal proceedings, regardless of
their financial means compared to their opponents.
 Judicial Vigilance:
 Judges are vigilant in preventing disproportionate litigation
tactics and may intervene to maintain fairness in proceedings.
 Marginal Relevance of Evidence:
 There are instances where conflicting evidence on alleged
non-disclosure issues may be of marginal relevance or best
left for resolution during the trial.
 Avoiding Satellite Litigation:
 Concerns have been raised about applications to set aside
freezing injunctions leading to substantial "satellite litigation."
 Summary Resolution of Issues:
 Issues of non-disclosure or abuse of process should ideally be
dealt with concisely and not become a form of preliminary
trial.
 Reserving Issues for Trial:
 It is generally inappropriate to seek to set aside a freezing
order for non-disclosure if proof of non-disclosure relies on
facts in dispute, as these issues should be reserved for trial.
 Case Law Example:
 In Kazakhstan Kagazy Plc v Arip [2014] EWCA Civ 381, the
Court of Appeal emphasized the need to deal with issues of
non-disclosure or abuse of process concisely, stating that
detailed analysis of possible inferences should not be required
during a without-notice application.

Discharge and Re-grant of an Injunction:

 Balancing Task for the Judge:

 When serious and culpable non-disclosure is exposed, leading
to the discharge of an interim injunction granted without
notice, the judge faces a balancing task.
  On one hand, if justice demands protection for the applicant,
refusing a fresh injunction solely due to non-disclosure may be
unjust.
 On the other hand, the court strongly inclines towards setting
aside the order and not renewing it to deprive the defaulting
party of any undue advantage.
 Preventing Injustice:
 The principle established in Brink’s-MAT Ltd v Elcombe
emphasizes that the rule itself should not become an
instrument of injustice.
 Deterrent to Non-disclosure:
 The court's policy inclines towards setting aside orders in case
of substantial breaches to serve as a deterrent.
 This deterrent is crucial to maintaining the integrity of the
legal process and preventing abuse of the system.
 Case Law Example:
 In U & M Mining Zambia Ltd v Konkola Copper Mines Plc,
serious failures in full and frank disclosure resulted in the
claimant bearing its own costs and paying part of the
defendant's costs, emphasizing the importance of compliance
and serving as a deterrent to other potential applicants.

Rule 25.1(1)(a): Interim Injunction

Introduction:

 An injunction granted during trial after establishing the claimant's

legal right and defendant's infringement is termed as a final
injunction.
 Any order made before judgment, regardless of its nature, is
considered an interim order under the CPR.
 The term "interim" is preferred over "interlocutory" in the CPR.

Scope of Application:

 A claim form must specify the remedy sought, including any

injunction, as a final order.
 However, parties can seek interim injunctions even if not initially
included in their claim form or counterclaim.
 The relief sought in an interim injunction may differ from what is
sought at trial.

Clarity of Relief:

 An interim injunction must precisely outline what actions the subject

is prevented from or required to do.
  Lack of precision in defining the relief sought may lead to denial of
the injunction.

Case Law Examples:

 In Fresh Fruit Wales Ltd v Halbert, the Court of Appeal emphasized

the possibility of seeking interim injunctions for relief not
appropriate for the final trial.
 Lawrence David v Ashton and CEF Holdings Ltd v Mundey illustrate
the requirement for clarity and precision in defining the relief sought
for an interim injunction.

Ensuring clarity and specificity in defining the relief sought is essential for
the grant of an interim injunction. Failure to do so may result in the denial
of the injunction.

Jurisdiction for Granting Injunctions

 Legal Framework:
 Section 37 of the Senior Courts Act 1981 provides the court
with broad discretion to grant injunctions if deemed just and
equitable.
 Personal jurisdiction over the respondent is a prerequisite for
the court's authority.
 Unlimited Discretion:
 The court's discretion in granting injunctions is unlimited,
subject to statutory restrictions.
 Broad Idea International Ltd v Convoy Collateral Ltd and
Fourie v Le Roux establish the broad discretion of the court in
granting injunctions.
 Persuasive Precedents:
 While Broad Idea is not legally binding, it holds significant
persuasive value and is considered influential in guiding
judicial decisions.
 Re G (Court of Protection: Injunction) affirms the persuasive
weight of Broad Idea, suggesting adherence to its principles.
 Exercise of Discretion:
 Instances where courts have declined jurisdiction often reflect
the court's decision not to exercise its power rather than a
lack of jurisdiction.
 The court may decline to grant injunctive relief in accordance
with established practices, except in specific circumstances.

Conclusion: The court holds extensive discretion, guided by principles of

justice and equity, in granting injunctions. While not legally binding,
precedent-setting cases like Broad Idea inform judicial decisions and
underscore the court's broad authority in this regard. Understanding the
nuances of jurisdiction and the court's discretion is crucial for parties
seeking or contesting injunctions.

Principles and Guidelines for Interim Injunction Applications

 Cross-Undertaking in Damages:
 Applicants must provide a cross-undertaking in damages,
ensuring compensation for any losses incurred by the
respondent due to the injunction.
 Notice Requirement:
 Interim injunction applications should generally be made with
notice to the respondent, except in limited circumstances
where urgent action is necessary.
 Duty of Full and Frank Disclosure:
 Applicants have a duty to make full and frank disclosure of all
relevant facts and legal aspects to the court, minimizing the
risk of error in the decision-making process.
 Preference for Prohibitory Injunctions:
 Courts may be more hesitant to grant mandatory injunctions
due to the potential for irremediable prejudice, compared to
prohibitory injunctions.
 Overriding Objective:
 The court must adhere to the overriding objective of dealing
with cases justly and at proportionate cost, ensuring fairness
and efficiency in the legal process.
 Avoidance of Resolving Critical Disputed Questions:
 Courts should refrain from resolving critical disputed questions
of fact or complex legal issues during interim injunction
hearings, especially when these issues are central to the case
and remain uncertain.
 Consideration of Delay in Freezing Order Applications:
 Delay in applying for a freezing injunction may impact the
court's assessment of the risk of dissipation of assets. Delays
could cast doubt on the urgency of the situation or allow the
respondent to dissipate assets.
 Jurisdictional Authority:
 The court's authority to grant injunctions stems from Section
37 of the Senior Courts Act 1981, allowing the court to issue
injunctions when it deems just and convenient, with wide
discretionary powers.
 Flexibility in Injunction Terms:
 Injunctions may be granted unconditionally or with specific
terms deemed just by the court, ensuring flexibility in
addressing the circumstances of each case.

Conclusion: Interim injunction applications are guided by principles of

fairness, disclosure, and efficiency. Applicants must adhere to their duty
of full disclosure, and courts must balance the urgency of the situation
with the need for fairness and proportionality in granting injunctions.

Principles of American Cyanamid Case

Background:

 The American Cyanamid Co v Ethicon Ltd case established the procedure and tests
for the court when considering an application for an interlocutory injunction.

Initial Question:

1. Serious Question to be Tried:

 The court must determine if there is a serious question to be tried, acting as a
threshold requirement.

Subsequent Questions: 2. Adequacy of Damages as Remedy:

 If there is a serious question, the court evaluates whether damages would suffice as a
remedy for the injured party in case of an injunction. If damages are deemed
inadequate, further consideration is warranted.
3. Balance of Convenience:
 If damages are inadequate, the court weighs the balance of convenience to
determine whether granting or denying the injunction is more appropriate,
considering the overall impact on both parties.

Guidelines from American Cyanamid Case:

 Two-Stage Approach:
 The court should apply a two-stage approach when evaluating the adequacy of
damages and the balance of convenience.
 Guidance on Application:
 The case provided guidelines on how the court should approach these
questions, ensuring consistency and fairness in decision-making.

Underlying Principles:

 Threshold Requirement:
 The threshold requirement ensures that only cases with merit proceed to
further consideration.
 Equitable Relief:
 The court aims to provide equitable relief, balancing the interests of both
parties and ensuring fairness in the resolution of disputes.

Conclusion: The American Cyanamid case introduced a structured approach for courts to
follow when considering applications for interlocutory injunctions, emphasizing the
importance of a serious question to be tried, the adequacy of damages, and the balance of
convenience. These principles ensure fairness and consistency in the granting of injunctions,
safeguarding the interests of all parties involved.
Principles for a Serious Question to be Tried

1. Temporary and Discretionary Remedy:

 An interlocutory injunction is a remedy of a temporary nature
and granted at the discretion of the court. It provides
provisional relief until the final determination of the matter.
2. Incomplete Evidence:
 At the interlocutory stage, the evidence presented to the court
is often incomplete and primarily based on written
submissions. This evidence has not undergone the scrutiny of
oral cross-examination typical in full trials.
3. Avoidance of Trial Resolution:
 The court refrains from resolving conflicts of evidence or
complex legal issues during the interlocutory hearing. Such
matters are reserved for full trial proceedings, where a more
comprehensive examination can take place.
4. Decision Amid Uncertainty:
 Interlocutory injunctions are granted when there is uncertainty
regarding the existence of the claimant's right or its violation
by the defendant. This uncertainty persists until a final
judgment is rendered in the case.
5. Risk Mitigation for Claimant:
 The purpose of granting interlocutory injunctions is to mitigate
the risk of injustice to the claimant during the period of
uncertainty before trial. It aims to prevent irreparable harm
that cannot be adequately compensated through monetary
damages.
6. Undertaking for Damages:
 To balance the interests of both parties, the claimant is
required to provide an undertaking to pay damages to the
defendant if it is later determined that the injunction should
not have been granted.
7. Protection of Rights:
 Interlocutory injunctions serve to protect the claimant's legal
rights from potential harm or infringement by the defendant.
However, this protection must be balanced against the rights
and interests of the defendant.
8. Balance of Convenience:
 In determining whether to grant an interlocutory injunction,
the court evaluates the balance of convenience, considering
the relative harm or inconvenience that each party may suffer
if the injunction is granted or refused.
9. Discretion and Balance:
 While the court exercises discretion in granting injunctions, it
must ensure that the claim is not frivolous or vexatious. The
 balance between the parties' interests guides the court's
decision-making process.
10. Seriousness of Claim:
 The court assesses whether there is a serious question to be
tried, ensuring that the claimant's case has merit and is not
brought frivolously or without merit.
11. Prospects of Success:
 If the claimant demonstrates real prospects of success at trial,
the court proceeds to consider the balance of convenience in
determining whether to grant the injunction.
12. Exceptional Appeals:
 Appeals to higher courts based solely on the balance of
convenience are rare and typically reserved for cases of
significant legal importance or complexity.

American Cyanamid principles in conjunction with CPR case management:

1. Objective of Court Neutrality:

 The fundamental objective during an interlocutory injunction
application is for the court to refrain from expressing opinions
on the case's merits until the full trial.
2. Prevention of Protracted Proceedings:
 The principles aim to prevent the court from becoming
entangled in complex, contentious issues unsuitable for
interlocutory determination, especially when the trial date is
uncertain or distant.
3. Cost and Time Efficiency:
 The principles serve as pragmatic case management rules,
intended to reduce costs and delays associated with
protracted litigation.
4. Avoidance of Duplication:
 By preserving the status quo and abstaining from detailed
merits analysis, the principles help avoid situations where
cases may effectively be tried twice, once at the interlocutory
stage and again at trial.
5. Assessment of Prospects:
 While maintaining neutrality, the court must assess the
parties' prospects of success to determine the
appropriateness of granting interim relief.
6. Balance of Interests:
 The court weighs the balance of convenience and necessity,
considering the potential harm to each party if the injunction
is granted or denied.
7. Case Management Imperatives:
 American Cyanamid principles align with the broader goals of
CPR case management, emphasizing efficiency, fairness, and
judicial economy.
 8. Respect for Final Trial:
 The court's focus remains on facilitating a fair and expeditious
trial, avoiding premature adjudication of complex issues
better suited for determination at trial.

Guidelines—Adequacy of Damages as a Remedy and the Balance of

Convenience

The guidelines derived from the case of Fellowes & Son v Fisher:

1. Adequacy of Damages as a Remedy:

 The court's first consideration is whether damages would
adequately compensate the claimant if they succeed at trial. If
damages suffice and the defendant can pay, an interlocutory
injunction is typically not granted, regardless of the strength
of the claimant's case.
2. Assessment of Defendant's Ability to Pay Damages:
 If damages are inadequate, the court examines whether the
defendant would be able to pay damages under the claimant's
undertaking. If so, this consideration may not warrant an
injunction.
3. Balance of Convenience:
 When doubts persist regarding the adequacy of damages, the
court evaluates the balance of convenience. This assessment
involves a case-by-case analysis and is influenced by various
factors.
4. Preservation of Status Quo:
 In situations where factors are evenly balanced, it's prudent to
preserve the status quo until the trial.
5. Uncompensatable Disadvantages:
 The extent to which each party would suffer uncompensatable
disadvantages in the absence of an injunction is a crucial
factor in determining the balance of convenience.
6. Relative Strength of Cases:
 If the disadvantages are similar, the relative strength of each
party's case may influence the decision. This is only
considered when one party's case significantly outweighs the
other's, based on undisputed evidence.
7. Consideration of Special Factors:
 Beyond the enumerated factors, the court may consider other
special circumstances unique to the case.

Stage 1 of the American Cyanamid principles and the adequacy of

damages as a remedy:

1. Two-Stage Approach:
  Lord Diplock in R. v Secretary of State for Transport, Ex p.
Factortame Ltd (No.2) outlined a two-stage approach. The first
stage involves considering whether damages would
adequately compensate the claimant or defendant, depending
on the situation.
2. Guidelines (1) and (2) by Browne LJ:
 Browne LJ's guidelines focus on whether damages would be an
adequate remedy for the claimant or defendant. If damages
suffice for the claimant or defendant, the court may not grant
an interlocutory injunction.
3. Proportionality of Harm:
 The nature and degree of harm and inconvenience, for which
monetary compensation is inadequate, are crucial factors.
These disproportionate harms to both parties heavily influence
the decision-making process.
4. Practical Limitations of Guideline (2):
 A strict application of guideline (2) could lead to automatic
injunctions whenever a serious issue arises, coupled with the
availability of damages. However, this approach may not align
with the intention behind Lord Diplock's guidelines.
5. Case Law Illustration - AB v CD [2014] EWCA Civ 229:
 In a contractual dispute involving a damages clause limiting
recoverable losses, the Court of Appeal emphasized that
damages clauses do not automatically preclude the granting
of injunctions. The court considered various factors beyond
direct financial losses, and the pre-quantification of damages
did not undermine the claim for an injunction to prevent
further breaches.

Stage 2 of the American Cyanamid principles and the balance of

convenience:

1. Transition to Stage 2:
 If doubts arise regarding the adequacy of remedies in
damages for either party, the court proceeds to the second
stage, known as the "balance of convenience." This stage
aims to determine where the overall balance lies regarding
the granting or refusal of an interlocutory injunction.
2. Interpretation of "Convenience":
 The term "convenience" in the context of s.37(1) of the Senior
Courts Act 1981 signifies what is just and appropriate.
However, in some cases, the balance to be struck is viewed as
more substantial than mere convenience and is better
characterized as the "balance of the risk of doing an injustice."
3. Consideration of All Circumstances:
 The court examines all circumstances of the case to
determine the balance of convenience. Lord Goff emphasized
 the importance of Lord Diplock's guidelines (3) and (7) in
Fellowes & Son v Fisher, which highlight the varied factors
influencing this balance and caution against attempting to
assign relative weights to them.
4. Predicting Irremediable Prejudice:
 The court engages in predicting the potential for irremediable
prejudice to either party based on the grant or withholding of
the injunction. The guiding principle is to choose the course of
action least likely to cause irreparable harm.
5. Role of Cross-Undertaking in Damages:
 The willingness of the applicant to provide a cross-undertaking
in damages significantly influences the court's decision on
whether to grant the interim injunction. The prospect of the
unsuccessful claimant compensating the defendant for losses
incurred during the injunction period weighs heavily in
assessing the balance of convenience.

(a) - Preserving the Status Quo Ante:

1. Guideline (4): When other factors are evenly balanced, it is

advisable to preserve the status quo as a prudent measure.
2. Function of Interlocutory Injunction: In some cases, the primary
function of an interlocutory injunction is perceived to be the
preservation of the status quo, as stated in Siskina v Distos
Compania Naviera SA. However, this principle may not always align
with the overarching goal of avoiding injustice.

(b) - Relative Strength of Each Party's Case:

1. Guideline (6): This guideline aims to limit the consideration of the

relative strength of each party's case.
2. Restriction on Consideration: The strength of each party's case
should only be considered as a last resort when the balance of
convenience is otherwise evenly poised. Moreover, this factor
should not be taken into account unless it is evident, based on
undisputed facts, that one party's case is significantly stronger than
the other's.

(c) - Effect of Delay to Trial:

1. Impact on Disposition of Action: In certain cases, whether the

grant or refusal of an interlocutory injunction will effectively dispose
of the action finally may depend on the length of delay to trial.
 2. Case Example: In Lansing Linde Ltd v Kerr, it was noted that delay
to trial could affect the disposition of the action finally. Staughton LJ
highlighted this aspect, indicating its significance.
3. CPR Impact: While the Civil Procedure Rules (CPR) have generally
expedited the trial process, there are still scenarios where delay to
trial remains a crucial factor.
4. Illustrative Case: In CEF Holdings Ltd v Mundey, the trial for a
claim to restrain breaches of post-termination covenants in an
employment contract was not scheduled until the end of the
contractual restriction period, underscoring the importance of
considering trial delay in interlocutory injunction cases.

(8) - Mandatory Injunctions:

1. Nature of a Mandatory Injunction:

 A mandatory injunction compels the performance of a positive
act to rectify an omission or to restore the prior state by
undoing a wrongful act.
 It may be granted in certain circumstances, including in quia
timet actions, which aim to prevent an anticipated legal wrong
where no current wrongdoing exists, and the applicant lacks a
legal remedy. (Reference: Morris v Redland Bricks Ltd)
2. Seriousness of Power:
 Traditionally, granting a positive injunction was considered
more significant than a negative injunction.
 However, the Privy Council, in National Commercial Bank
Jamaica Ltd v Olint Corp Ltd, emphasized that the
determination should focus on predicting the likelihood of
causing irremediable prejudice by granting or withholding the
injunction, regardless of whether it is positive or negative. The
guiding principle is to minimize irremediable prejudice.
3. Jurisdiction under Senior Courts Act 1981:
 Section 37(1) of the Senior Courts Act 1981 provides the court
with wide and general jurisdiction to grant injunctions.
 The court may grant an injunction, whether interlocutory or
final, in cases where it deems it just and convenient to do so.
 This provision empowers the court not only to grant
prohibitory injunctions but also to issue mandatory
injunctions, both as final remedies at trial and as interim
remedies upon interlocutory applications.

Case: Nottingham Building Society v Eurodynamics Systems

[1993] F.S.R. 468

 Background: Chadwick J applied the American Cyanamid principles

and guidelines.
  Assessment of Adequacy of Damages: Determined that
damages would not be an adequate remedy for either party.
 Consideration of Balance of Convenience: Chadwick J
considered various authorities, including Films Rover International
Ltd v Cannon Film Sales Ltd [1987] 1 W.L.R. 670, and outlined
principles for assessing the balance of convenience:
1. Overriding Consideration: The primary consideration is to
determine the course of action that involves the least risk of
injustice if found to be "wrong" at trial, whether it involves
granting or refusing an interlocutory injunction.
2. Assessment of Mandatory Injunctions: When considering
a mandatory injunction, the court should recognize that an
order requiring positive action at an interlocutory stage carries
a higher risk of injustice if found to be wrongly made
compared to an order preserving the status quo.
3. Degree of Assurance: It is legitimate to assess the
likelihood of the claimant establishing their right at trial when
considering a mandatory injunction. The higher the assurance
of success at trial, the lower the risk of injustice if the
injunction is granted.
4. Balance of Risks: Even if there is no high degree of
assurance regarding the claimant's success at trial,
circumstances may justify granting a mandatory injunction at
an interlocutory stage if the risk of injustice from refusing the
injunction outweighs the risk of injustice from granting it.

Undertaking by Defendant in Lieu of Injunction

 Context: When an interim injunction is granted without notice, and

at the subsequent hearing the claimant accepts the defendant's
offer of security, clarity regarding the disposition of the interim
injunction is crucial.
 Continuation or Adjournment: It's important to determine
whether the interim injunction is disposed of or simply adjourned, as
this affects the grounds upon which the defendant may seek release
from the undertaking.
 Construction of Terms: Construing the terms of the undertaking
in the context of the order as a whole is necessary to determine its
nature.
 Relevant Authorities:
 Chanel Ltd v F.W. Woolworth & Co Ltd [1981] 1 W.L.R.
485, CA: Examined and applied in Emailgen Systems Corp v
Exclaimer Ltd [2013] EWHC 167 (Comm); [2013] 1 W.L.R.
2132 (Teare J). Defendants' right to argue against the freezing
order was compromised by the terms of their undertaking.
 Butt v Butt [1987] 1 W.L.R. 1351, CA: Relevant in
assessing the nature of undertakings in lieu of injunctions.
 Release from Undertaking:
  A party wishing to be released from an undertaking in lieu of
an injunction must make an application to the court supported
by evidence.
 An application to vary an undertaking is incorrect; instead, an
application for release (or discharge) should be made.
 Nature of Undertaking: An undertaking is a voluntary promise
made by a litigant to the court, and the court cannot impose any
variation of its terms.
 Authorities:
 Birch v Birch [2017] UKSC 53; [2017] 1 W.L.R. 2959, SC:
Clarified the nature of undertakings and the procedure for
seeking release.
 Cutler v Wandsworth Stadium Ltd [1945] 1 All E.R. 103,
CA: Morton LJ emphasized the voluntary nature of
undertakings and the need for proper application for release.

Angel Group Ltd v Davey - 21 February 2018

 Background: In this case, Judge Hodge QC addressed the

discretion to vary undertakings voluntarily given during proceedings
and its application to interim orders made by consent.
 Reference to Di Placito v Slater [2003] EWCA Civ 1863;
[2004] 1 W.L.R. 1605, CA:
 Potter LJ's Explanation: The discretion to vary undertakings
is not unrestricted but is governed by certain circumstances
outlined by Potter LJ.
 Considerations of Importance: Potter LJ highlighted:
 The context in which the undertaking was given.
 Whether the undertaking was given independently to
the court or as part of a collateral bargain between the
parties.
 Differentiation in Considerations:
 For Independently Offered Undertakings (a): The court is
primarily concerned with ensuring that the undertaking,
solemnly given, is observed unless and until the court decides
to discharge or release it.
 For Collateral Bargain Undertakings (b): The court
focuses on the issue of justice between the parties and the
deprivation of the beneficiary's benefit of the bargain
voluntarily made if the undertaking is released or varied.
Circumstances of the application are also considered.
 Discretion to Vary: The discretion to vary is exercisable only on a
significant change of circumstances, referred to as "special
circumstances," different from those contemplated or intended to
be governed by the undertaking at the time it was given.
 Legal Authority: Di Placito v Slater [2003] EWCA Civ 1863; [2004]
1 W.L.R. 1605, CA, provides guidance on the exercise of discretion
 to vary undertakings and applies similar considerations to
applications to vary interim orders made by consent.

Discharge or Release from Undertakings:

 Case Reference - Birch v Birch [2017] UKSC 53; [2017] 1 W.L.R. 2959, SC:
 The Supreme Court clarified that a court lacks the power to impose any
variation on voluntary promises.
 A litigant seeking to cease their obligation under an undertaking should apply
for its release or discharge.
 The applicant may offer a further undertaking with different terms, which the
court may accept and grant the release based on it.
 The court may conditionally grant release contingent on the applicant
providing an additional or differently termed undertaking.

Disputing Undertaking Contents Before an Appeal Court:

 Options for Litigant:

1. Decline to Give Undertaking: Accepting refusal of injunction (or limited
injunction pending appeal).
2. Refuse to Give Undertaking, but Seek Equivalency: Invite the judge to
make an order with equivalent terms or condition the injunction on
fortification.
 Appeal Challenges: Refusal or conditional grants may be appealed:
 Case Reference - Schettini v Silvestri [2019] EWCA Civ 349: The refusal or
condition may be contested on appeal.
Cross-Undertaking as to Damages:

 Granting Interim Injunction:

 The court typically requires the applicant to offer a cross-
undertaking in damages as a condition for granting an interim
injunction.
 The term "cross-undertaking" denotes that the undertakings
are given by and are binding on the applicant.
 Voluntary Offering:
 The court lacks the authority to compel a party to provide a
cross-undertaking; it must be willingly offered by the
applicant.
 Scope of Protection:
 The cross-undertaking is not only for the respondent's
safeguarding but also extends to any other individual who
may incur loss due to the order.
 Practice Direction (PD) 25A paras 5.1 and 5.2 elaborate on this
requirement for protection.

 Legal Basis:
  The Senior Courts Act 1981 s.37(2) empowers the court to
issue an interlocutory injunction either unconditionally or
subject to terms and conditions deemed just by the court.
 Historical Practice:
 In American Cyanamid Co v Ethicon Ltd [1975] A.C. 396, HL,
Lord Diplock elucidated the long-standing practice regarding
interlocutory injunctions.
 Since at least the mid-19th century, the prevailing practice
has been to attach conditions to the grant of interlocutory
injunctions.
 Specifically, this condition entails the claimant providing an
undertaking to compensate the defendant for any losses
suffered due to the injunction if it's subsequently determined
at trial that the claimant was not entitled to the relief sought.
 Instances where this compensation obligation may arise
include discontinuation of proceedings, discharge of the
injunction before trial, or a determination at trial that the
claimant's entitlement to restrain the defendant was
unjustified.

Undertakings in Interim Injunctions Generally:

 Voluntary Nature:
 The court lacks the authority to compel an applicant to
provide a cross-undertaking. However, it can refuse to grant
an injunction unless the applicant offers one.
 If the court decides to impose such a condition, it's at the
discretion of the applicant to decide whether they are willing
to provide it. Failure to comply may result in the injunction
being denied.
 Material Consideration:
 The willingness of the applicant to provide a cross-undertaking
is a crucial factor in the court's decision to order an interim
injunction.
 An unsuccessful claimant will be liable to compensate the
defendant for any losses incurred due to compliance with the
interim remedy during its effective period.
 Retrospective Imposition:
 A cross-undertaking cannot be imposed retrospectively,
highlighting its voluntary nature.
 Express and Implied Undertakings:
 Typically, the cross-undertaking is expressly provided by the
applicant and explicitly incorporated into the court's order.
 However, even if not expressly stated, the court may enforce
an implied undertaking unless explicitly agreed otherwise at
the time.
 Limited Undertakings:
  If a limited cross-undertaking is offered and accepted by the
court, there's generally no room for implying further
obligations beyond what was explicitly offered and accepted.
 Fortification with Security:
 As an additional condition, the claimant may be required to
fortify the undertaking by providing security.
 Purpose and Assessment:
 The purpose of a cross-undertaking in damages is to ensure
compensation for any losses incurred concerning the
injunction or undertaking.
 The court may need to assess the potential kind and extent of
loss to determine the adequacy of the undertaking, with or
without fortification.
 Legal Precedents:
 Legal precedents like Re DPR Futures Ltd [1989] 1 W.L.R. 778
and Sinclair Investment Holdings S.A. v Cushnie [2004] EWHC
218 provide guidance on the assessment of undertakings'
value and adequacy.

Applicant Unable to Offer Credible Undertaking:

 Financial Limitations:
 Impecunious or financially limited applicants may struggle to
offer a credible undertaking or may be unwilling to provide
one to the fullest extent.
 Legal Precedent - Allen v Jambo Holdings Ltd:
 In Allen v Jambo Holdings Ltd [1980] 1 W.L.R. 1252, CA, it was
established that the court should not deny an interlocutory
injunction to a legally aided claimant solely based on the
limited value of their undertaking in damages. Financial
stability should not impact the pursuit of justice.
 Burden of Proof:
 If an applicant cannot provide an unlimited cross-undertaking,
the burden is on them to demonstrate why they are unable to
access external funds and why a lesser undertaking should
suffice.
 Legal Precedent - JSC Mezhdunarodniy Promyshlenniy Bank
v Pugachev:
 In JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev
[2015] EWCA Civ 139, CA, it was emphasized that the
applicant must show why they are unable to offer a
meaningful undertaking, potentially drawing on similar criteria
used in assessing financial resources in other legal contexts.
 Goldtrail Travel Ltd v Onur Air Tasimacilik AS:
 The Supreme Court's criterion from Goldtrail Travel Ltd v Onur
Air Tasimacilik AS [2017] UKSC 57 may be applicable,
requiring the applicant to establish, on the balance of
probabilities, the unavailability of funds from any source
closely associated with them to fulfill the requirement of
providing a meaningful cross-undertaking in damages.