Injunctions without Notice
The Courts which exercise equitable jurisdiction (the Circuit Court, the High Court and the Court of Appeal or the Supreme Court on appeal) may, in exceptional cases of necessity, grant an injunction on the application of one party to legal proceedings, without prior notice to the other party. This is referred to as an interim or “ex parte” injunction. There must be exceptional circumstances to that an ex parte injunctions it is strictly necessary. This usually requires that prior notice to the affected parity would undermine the effectiveness of the Injunction.
An “ex parte” injunction is strictly provisional and the party affected, will be given an early opportunity to contest it. It is designed to preserve the position, pending the hearing of the interlocutory injunction applicati0on, of which both parties have notice and which in turn, considers the position pending the trial of the actual claim. As with other injunctions, legal proceedings must have issued, which seek to enforce a claim. The proceedings are served together with the court order, in the cased of an interim injunction.
A refinement of the interim injunction is an interlocutory injunction (with notice to the affected party) where the notice period is shortened from the standard four day period. The notice, albeit shortened, makes the court more likely to grant this injunction, relative to an ex parte injunction, given that there is some opportunity to contest the application.
Form of Injunction
As with injunctions generally, the courts are much more likely to grant a negative injunction, than a positive injunction. As with an interlocutory injunction, it seeks to restrain or prevent the defendant from the repetition or continuation of a wrongful act or breach of contract.
A negative injunction prohibits a particular act. A positive injunction is an order to perform a particular act. The Courts are more disposed to grant a negative order because it is easier to enforce and generally less onerous. An order of specific performance is a separate remedy to enforce contracts.
The High Court and Circuit Court have powers to grant injunctions, including an interim and interlocutory Injunction. The District Court does not have the power to grant equitable remedies such as an injunction. Administrative tribunals, such as the Employment Appeals Tribunal, do not have the power to grant an injunction.
The principles that apply to an interim (one-sided) injunctions, are broadly similar to those which apply to pre-trial Injunction on notice (an interlocutory injunction). However, additional considerations arise from the one-sided nature of the Application.
It is a very basic principle of constitutional justice that both sides should be heard, in any Court proceedings. This is reflected in the entire administrative and judicial system. Therefore the interim Injunction application must show an urgent and immediate risk, which requires the unilateral application, so as to justify deviation from the general principle.
The test applied by the Court in an interim injunction application is broadly similar to that in an interlocutory injunction application (with prior notice). There must be a fair question to be tried. This means there must be a real issue between the parties, which is proper to be tried in full proceedings. The courts wish to avoid delving too far into the merits of the case. It is not necessary to show a prima facie or apparent case, as was once required.
The ultimate award of damages or compensation in the trial of the action must be inadequate to protect the relevant right. The court considers whether damages if ultimately granted would be futile or inadequate (if it did not grant the injunction). The court considers whether the claimant’s undertaking to pay damages (see below), if he fails in the ultimate action, would be adequate to compensate the defendant for the loss, arising by reason of the grant of the Injunction.
As with interlocutory injunctions, the Court considers the “balance of convenience”. This criteria considers the relative loss or gain and its proportionality, in case of the grant or withholding of and injunction, respectively. In many cases, the grant if an injunction is necessary to protect against the irretrievable loss of rights granted. In other circumstances, monetary compensation may be sufficient, in which case, the courts will not grant an Injunction.
The interim Injunction is only granted in the context of proceedings. The issue of an ex parte requires the contemporaneous issue of the substantive summons in the case. In the High Court, the originating document is the Summons. The Statement of Claim need not be issued. In the Circuit Court, the originating document is the Civil Bill. There is no separate Statement of Claim. Exceptionally where the circumstances are very urgent, the Court may accept the applicant’s undertaking to issue the summons or other originating documents, within a very short time frame.
The interim injunction application is grounded on a written affidavit, which sets out the basis of the claim. It must prove the urgency and the necessity for an ex-parte injunction. The applicant must make a full and frank disclosure of the circumstances. He must give an adequate undertaking as to damages, in case he ultimately fails in the legal action so that the defendant is fully compensated for the loss occasioned by the injunction.
The applicant must act in the utmost good faith. He must disclose both the strengths and weaknesses of his case. Because it is a one sided application, he may not highlight points which are favourable to him, while ignoring known points which are disfavourable to his case. This may require the applicant to make enquires in relation to the full circumstances.
Even when full disclosure is made, the Court will be somewhat circumspect, as it will be aware that the applicant is unlikely to argue his opponent’s case. Even after the Order is obtained, the applicant’s duty to make full disclosure continues. If new significant events occur, for example, even before the order is served, an application must be made to Court which must be informed of the new circumstances.
Terms of Injunction
If the Court grants an interim injunction, it will be on such terms as the Court thinks just in the circumstances, having regard to the above criteria. On an application for an interim injunction, the court may refuse the application, but make an order for short service of an interlocutory application (i.e. application on notice, albeit short notice). Generally, the ultimate responsibility for legal costs in the application will be reserved until the full hearing of the case. Courts generally award costs to the successful party.
The Order will generally last until the interlocutory application, which will give the defendant affected, an early opportunity to assert his side of the case. Courts will seek not to grant the order in any wider terms than necessary. The fact that an application for an interim (one-sided) injunction has failed, does not mean that the application for the interlocutory (two-sided) application will fail.
Once the interim order is made, it must generally be served on the defendant either in person or by some other method as circumstances may require, in order to be effective.
The consequences of the defendant breaching the Injunction are the same as for interlocutory or final Injunction. See our chapter on the enforcement of Injunctions.
Discharge or Variation
Once an Injunction has been granted, the party affected may apply to have it discharged or varied. That party is entitled to do so at an early date. This will usually occur at the hearing of the interlocutory application.
An interim injunction may be set aside on the basis of failure to meet any of the above criteria. As with other proceedings based on affidavit (i.e. written sworn documents), the other party may apply to have the person cross-examined in relation to the contents of his Affidavit.
In theory, it is possible to appeal against an interim order of the Circuit Court or High Court to the High Court or Supreme Court respectively. However, in practice, it is more likely to deal with the matter at the interlocutory stage in the same Court.
In Support of Freezing, Search & Other Injunctions
An interim order will commonly be granted on an interim basis, in respect of certain special pre-emptive injunctions, which are designed to support legal proceedings rather than enforce the substantive right claimed. Proceedings for a pre-trial asset freezing injunction or search injunction, of necessity, require a pre-emptive application. See the separate chapters on so-called Mareva and Anton Pillar injunctions.
Because it is a one-sided Application going against the fundamental general rule that both sides should be heard it may only be granted in exceptional circumstances.
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