Injunctions - swift justice?
Courts are understandably, and even more so in the present pandemic, infamous for taking their time when dealing with matters that are before them. However, that is somewhat harsh when you consider the amount of cases and applications that people need a judicial determination on, there are, after all, only so many judges and so many hours in the day.
But what happens when a situation arises unexpectedly that needs a rapid determination to avoid significant and possibly disastrous consequences? The answer, a without notice interim injunction to protect the present state of affairs. An injunction can either make or prevent someone from doing certain specified actions and are very flexible. If the order is breached then that person can be found to be in contempt and potentially imprisoned for up to two years.
This is an application that the other side will not be aware of to start with, although you are expected to notify them of the application, even if it is only informally. The paperwork is prepared, it is filed with the court and then a judge will hear from that party’s representative and decide whether the necessary tests have been met so as to justify making an order.
If the tests have been met the court will make an order and it takes effect immediately once it is served on the opposing party. The court will also order that another hearing takes place (after which the other side has been given the order and the evidence), where the opposing party will have the chance to have their say and the court, in turn, will at that point decide whether to allow the injunction to continue or not. However, before that second hearing, the responding party will still have to do what the order says or face the aforementioned consequences.
So, if that is the case, you would be forgiven for asking why every matter is not dealt with on an interim basis.
The answer is because it is extremely draconian to be forced to or restrained from doing something, under threat of imprisonment, without having any input in the initial process and so, naturally, the rules are very strict. That is why you can only apply for such a ‘without notice’ order if it is ’urgent’ or ‘in the interests of justice’ to do so. That is also why the court will require the applying party to make various undertakings (formal promises) to the court including that, if the injunction is later set aside, the applying party will compensate the party who has been compelled or restrained so that they do not lose out financially because of the impact of the injunction.
Also, there is a duty of full and frank disclosure when you are applying ‘without notice’. This means that you have a responsibility to lay all relevant facts before the court, even if they do not help your case. So, in effect, you have to make the other side’s case for them at that stage whilst the judge is weighing everything up. Woe-betide any client that tries to be economic with the truth.
In short, without notice injunctions are expensive, time consuming and procedure-heavy and, due to the undertakings, if it is later set aside there could also be the additional cost of the other side’s legal fees. As you might expect, opposing parties do not take too kindly to being made the subject of an injunction. They are not to be sought lightly.
But if the facts warrant it and there is a truly urgent need, it is possible to apply to the county court, but more likely the High Court, for a quick turnaround so that the initial hearing can take place within a day or so (which is pretty much instantaneous for a court). Although rare, there is even a process for an injunction to be made over the phone but, as you can imagine from what is said above, that is reserved for the most extreme and rare of cases.
Our litigation partner Matt Champ specialises in interim injunctive relief and has experience of applying for such orders in the county court and the High Court (Technology and Construction Court and the Chancery Division) and will be pleased to assist with any enquiries.