An injunction can be a powerful judicial remedy available to business owners and individuals who need to urgently stop something from happening, or need to prevent a party from taking a specific action. Conversely, an injunction can also be used to compel a party to do something.

Injunctions are frequently used as emergency remedies in circumstances where a party has a need to protect its legal rights or interests. Because these circumstances are usually time-sensitive, it is highly recommended that you act quickly and seek prompt advice in relation to making or defending an injunction, within a matter of days; to delay making an application for an injunction can prevent an injunction order being obtained.

In this guide, the commercial litigation solicitors at JMW explore the circumstances in which an injunction is appropriate, and the different types of injunctions that are available.

What is an injunction?

In simple terms, an injunction is an order made by the court requiring a party to do something specific, or to refrain from doing something. A party that breaches an injunction can be held in contempt of court.

Although an injunction is discretionary, the court does have the power to grant an injunction where it is “just and convenient” to do so.

Injunctions can be sought on an interim or final basis. Interim relief is sometimes known as an ‘interlocutory injunction’ and will usually be applied for before or during a trial. These interim injunctions are only intended to be a temporary measure, put in place until such time as the court has determined the outcome of the substantive claim. The final injunction or ‘perpetual injunction’ will only be made when the court has considered the case at the end of a trial.

A party seeking an interim injunction must have a valid underlying claim against the other party and, in the event that an injunction order is granted, that party must be ready to issue the claim promptly in court, otherwise it may constitute an abuse of process.

What are the different types of injunction?

There are various types of injunctions and circumstances in which an injunction might be granted, and our specialist solicitors at JMW can advise you on which injunction is most suitable in your case.

Mandatory injunctions

A mandatory injunction is issued by the court to oblige a party to do something, or to reverse something that has already been done, such as the delivery or surrendering of documents or property.

Prohibitory injunction

A prohibitory injunction, meanwhile, is an injunction of the court that prohibits or prevents a party from doing something specific. For example, this could be to prevent a breach of contract, or to prevent a party from dissipating their assets.

Precautionary injunction

A precautionary injunction may be granted where no wrongdoing has been committed, but it is suspected that this will happen if the injunction is not in place to prevent it. For example, a precautionary injunction can be used against persons unknown to prevent trespass, and in relation to cryptocurrency fraud.

The precautionary injunction can be difficult to obtain, because the court has to be persuaded that there is a real and substantial risk of damage of an imminent kind occurring; the more serious the risk, the greater the likelihood of the injunction being granted. The court will also consider the adequacy of damages as an alternative remedy to an injunction.

Springboard injunction

A springboard injunction is relevant in cases where there is no continued wrongdoing, but there is a risk of harm from the original wrongdoing. For example, a springboard injunction might be used if a former director or employee takes confidential client information from the business, and begins to contact clients with a view to obtaining work from those clients. A springboard injunction can also be used in relation to other confidential information.

Injunction against the world

An injunction against the world or against persons unknown binds everyone whether they are a party to the proceedings or not. This might be to prevent an unidentified person or persons, such as Travellers, from occupying land; it can also be used to prevent the publication of photographs, or to prevent an individual being identified in the media or on social media.

Injunctions for breach of restrictive covenants

A restrictive covenant is a clause in a contract that restricts a person - or another contracting party, such as a company - from taking a specified action. A restrictive covenant may be used by businesses to prevent a director from competing with the business after leaving.

When a restrictive covenant is breached, a party may be able to bring a legal claim in breach of contract. Sometimes, when a restrictive covenant has been breached, urgent action needs to be taken to prevent the breach continuing, or further breaches from happening.

A business may be able to make an application to the court for an injunction to prevent continuing or further breaches of a restrictive covenant, in addition to a legal claim in breach of contract.

Injunctions for breach of confidence

A breach of confidence occurs when previously confidential information is shared, or there is a threat that confidential information may be shared. In these circumstances, business owners may wish to take steps to prevent the sharing or further sharing of the confidential information, and/or the return of the confidential information.

A business may be able to make an application to the court for an injunction, in addition to a legal claim for breach of confidence.

Freezing injunction

A freezing injunction or freezing order may be able to be obtained in circumstances where there are concerns that a defendant in a claim may dispose of or move assets. The freezing order prohibits the respondent from dealing with or disposing of these assets.

A freezing injunction may be obtained when assets are required to be in place until the court can make a final decision in the case. The types of assets that can be frozen include bank accounts, shares, land and vehicles.

JMW has significant experience of making applications for freezing injunctions. Our Digital Assets team has experience of making applications for injunctions in the context of fraud in relation to cryptocurrency.

Search orders

A search order allows for the defendant’s premises to be searched. Search orders are usually made on a without-notice basis to preserve the property that is being sought. Search orders are not intended to be used to find evidence, but instead to preserve evidence where it is believed a defendant may destroy it. Examples include confidential documents or electronic devices holding sensitive data.

The search is usually conducted by a supervising solicitor, usually a senior solicitor who is independent of the claimant and the defendant in the case. The supervising solicitor acts on behalf of the court, and will have established experience of executing search orders.

A search order does not provide for forced entry into premises.

JMW has significant experience of this process, and we can advise you if a search order is appropriate in your case. Additionally, JMW’s Joint Head of Commercial Litigation Steve Morris is a court-approved supervising solicitor, and has executed search orders as an independent supervising solicitor on behalf of the court.

What is the process of making an application for an injunction?

If injunctive relief is appropriate in your case, our commercial litigation solicitors will discuss this in detail with you. An injunction is regarded as an urgent application, so it is likely the injunction application will proceed at a fast pace. As such, you or your business will be required to provide documents quickly, as well as instructions, so that a witness statement or affidavit setting out the evidence in support of the application can be prepared by your solicitor.

The first stage of any injunction is to make an application to the court. This can be done ‘with notice’ - in other words, the other party or respondents will be informed that you have made the application, and they will have the opportunity to respond to the application. If the application is being made on a with-notice basis, the application will be filed in court and a copy will be served on the respondent soon after.

An injunction application can also be made ‘without notice’ in circumstances where it appears to the court that there are good reasons for not giving notice. This is a high bar, and the court prefers to hear both sides. Examples include situations where the court is being asked to freeze assets (freezing order) or to search premises (search order), such that giving notice to the respondent might lead to assets being dissipated or moved. If a without-notice injunction is sought, evidence must be provided to the court to explain why this is justified. There is also a duty on the applicant and the solicitor to give full and frank disclosure, as the court needs to have all the evidence to hand.

Where the applicant or its legal advisers have failed to give full and frank disclosure, the injunction may be set aside and the applicant ordered to pay costs; there could also be findings of contempt of court. Our litigation solicitors will discuss your disclosure obligations with you.

What are the costs and duration of an injunction?

It is not possible to say how much an injunction application would cost, as every injunction will have its own unique facts and circumstances. Our litigation solicitors will be able to give you a clear estimate of costs upon taking your instructions.

However, it should be noted that applying for an injunction can be expensive, as there is often a significant amount of work to be undertaken. This includes drafting a detailed witness statement or affidavit, creating a skeleton argument and a draft order for the court’s consideration; court fees will also be payable, and JMW will instruct a barrister on your behalf to represent you or your business in court.

The cost will often depend on the nature of the injunction sought, the complexity of the case, and the level of the barrister required to assist with the injunction process.

What are the consequences of breaching an injunction?

The consequences of breaching an injunction can be severe, including confiscation of assets, fines and imprisonment for contempt of court.

Why choose JMW?

At JMW, we have a significant amount of experience of making applications for injunctions, and our experienced lawyers can guide you through this highly specialist and complex area.

Our litigation solicitors successfully obtain injunctive relief on behalf of clients on a regular basis, and have experience of taking enforcement action when an injunction has not been complied with. We combine our extensive experience with strategically and commercially focused objectives to ensure that our clients receive the legal support they need.