Briefing Note - Obtaining Injunctions in UK High Court

Discretionary Remedy

An injunction is an order of a court directing a party to legal proceedings to do a specified act or refrain from continuing to do a specified act. Injunctions are granted at the discretion of the court after consideration of particular rules, where for instance an award of damages – a monetary remedy – is inadequate.

The Supreme Courts Act 1981: s 37(1) states that the court may by order (whether interlocutory or final) grant an injunction … in all cases which it appears to the court to be just and convenient to do so”. In essence it requires that the claim has substance and is realistic.

Burden of Proof

The claimant must show that they have an arguable cause of action both on the alleged facts and in the application of the law to those facts. It makes sense to make the application on established principles of law rather than principles in the process of development.

The ‘just and convenient’ test set out in American Cyanamid requires the court to be satisfied that there is a serious question to be tried and that there is an arguable claim to the right that the claimant seeks to protect. The court must be persuaded on the balance of convenience that claimant ought to be granted the injunction.

Applications without Notice

The general principle for giving notice to the other side is stated by Lord Justice Ormond in Ansah v Ansah [1977] Fam 138 at 142, where his Lordship stated:

“Orders made ex parte [without notice to the defendant] are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party … Nevertheless, the power of the court to intervene immediately without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately … Even in such cases, the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare…”.

The risk to obtaining urgent injunctive relief is that an undertaking to pay the damages caused to the defendant if the injunction proves to have been wrongly awarded.