2. Interlocutory injunction (a temporary court order)
With a view to avoiding the potential injustice of such situations, the court has the power to make a provisional order before trial to regulate the position between the parties pending the trial. This order is called an “interlocutory injunction”, and is usually a temporary version of the type of injunction the plaintiff will seek at the trial.
How to apply for an interlocutory injunction
An application for the grant of an interlocutory injunction must be made by summons. The application must be supported by an affidavit/affirmation setting out the facts giving rise to the cause of legal action against the defendant, the facts giving rise to the claim for injunctive relief, and the relief sought.
If the main proceedings have not yet commenced, the plaintiff must first commence proceedings by means of a Writ of Summons or an Originating Summons. In cases of extreme urgency, the court may sometimes allow an application to be made and grant an injunction before proceedings are commenced, provided that the applicant undertakes to formally commence proceedings within a short period of time.
Urgent applications
However, if the case is urgent, such application may be made ex parte (i.e. without giving notice to the defendant) supported by an affidavit/affirmation. If the application is made ex parte, the plaintiff must disclose to the court all facts which are important to the proceedings, including any likely defences or weaknesses in one’s own case. It is advisable to read the Judiciary's Practice Direction 11.1 (Ex Parte, Interim and Interlocutory Applications for Injunctions) carefully for details of the application procedure to be followed.
In cases of extreme urgency, the court may sometimes allow an application to be made before proceedings are formally commenced, provided that the applicant undertakes to commence formal proceedings within a short period of time.
How the court decides whether to grant an interlocutory injunction
Generally, the court asks the following questions in deciding whether to grant an interlocutory injunction:
- whether there is a “serious question to be tried” which means that the claim must not be frivolous or vexatious and must have a real prospect of success;
- if so, whether, if the plaintiff were to succeed in obtaining a permanent injunction at trial, it could adequately be compensated by an award of damages in respect of any loss which it might suffer by reason of the defendant continuing to act unrestrained pending the trial;
- if not, whether the defendant would be adequately protected by the plaintiff's cross-undertaking in damages should it be later found that the plaintiff should not have been granted an interlocutory injunction; and
- if there is doubt as to the adequacy of the respective remedies of damages, where the balance of convenience lies.
1. Serious question to be tried
In determining whether there is a serious question to be tried, the court does not decide the final merits of the case at the interlocutory stage. It will not resolve conflicts of affidavit evidence or determine difficult questions of law that require full argument. Those matters are for trial. The threshold for showing that there is a serious question to be tried is low. It is enough that the claim has substance and reality. The applicant need not show that success at trial is likely. Even if the court thinks the chances are modest, that may still suffice. However, if the prospects are so remote that the applicant has only a hope, not a real prospect, then there is no serious issue to be tried.
If the plaintiff proves that the defendant has no arguable defence, the injunction will normally be granted. The court is not required to consider the issue of balance of convenience.
2. Whether damages would adequately compensate the plaintiff
If there is a serious question to be tried, the court then asks whether damages would be an adequate remedy for the plaintiff if:
- the interlocutory injunction is refused;
- the defendant is allowed to continue the complained-of conduct pending trial; and
- the plaintiff ultimately succeeds at trial.
If damages would be an adequate remedy, and the defendant is financially able to pay them, the injunction will normally be refused.
However, damages may be inadequate where the alleged harm is not purely financial. For example, where the defendant’s conduct creates health risks, safety risks, obstruction of access, or interference with public safety, such harm may not be readily measurable in monetary terms.
In one case, the plaintiff alleged that the defendant had placed bulky goods, bags and pallets in passageways outside several stalls and in the loading bay without permission, thereby narrowing access and obstructing common areas. The court held that damages would not adequately compensate the plaintiff because the obstruction affected market safety and operations, particularly for wheelchair users, visually impaired visitors, and emergency escape routes. These public safety risks were not purely monetary in nature.
3. Whether the defendant would be adequately protected by the plaintiff’s undertaking in damages
If damages would not adequately compensate the plaintiff, the court then considers the position of the defendant.
The question is whether the defendant would be adequately compensated by the plaintiff’s undertaking as to damages if:
- the interlocutory injunction is granted;
- the defendant is restrained pending trial; and
- it is later found that the injunction should not have been granted.
An undertaking as to damages is the plaintiff’s promise to compensate the defendant for loss suffered as a result of the injunction if the plaintiff ultimately fails to establish entitlement to that relief.
If the defendant’s potential loss is mainly financial, and the plaintiff is able to honour the undertaking, this will usually weigh in favour of granting the injunction.
4. Balance of convenience
If there is doubt as to whether damages would adequately compensate either party, the court then considers where the balance of convenience lies.
The “balance of convenience” is a legal test used by the court when deciding whether to grant an interlocutory injunction after the court is satisfied that there is a “serious question to be tried” and that damages would not be an adequate remedy for both sides. In simple terms, when a court is asked to grant an Interlocutory injunction, it must weigh up the likely harm or disadvantage each side would suffer depending on whether the injunction is granted or refused.
The modern approach is to take the course that is likely to cause the least irremediable prejudice, or the lower risk of injustice, pending trial. The court will consider all relevant circumstances, including:
- the need to preserve the existing situation;
- the impact of granting or refusing the injunction;
- special factors demanded by individual cases, including public interest, national security and commercial realities; and
- where appropriate, the relative strength of the parties’ cases.
If the factors are evenly balanced, the court will usually prefer to preserve the status quo until trial.
Mandatory injunctions
A mandatory injunction, which requires a party to take positive action, is treated more cautiously than a prohibitory injunction. The court usually requires a higher standard of proof at the interlocutory stage, such as a “strong prima facie case”, and must feel a “high degree of assurance” that the injunction will be found at trial to have been rightly granted. However, the overriding principle remains choosing the path that involves the least risk of injustice.
Finality of the order
If granting or refusing the injunction would, in practical terms, decide the whole case before trial, the court will examine the application more carefully. This is because the temporary injunction may have the same effect as a final judgment.
In such cases, the court may look more closely at whether the plaintiff is likely to win at trial. The plaintiff may have to satisfy a higher evidential burden, such as showing that he is “at least likely to succeed”.
For example, an employer may apply for an injunction to stop a former employee from working for a competitor for a fixed period. If the legal process takes longer than the remaining time on the employee’s contract, the injunction will be “spent” before the case can ever reach trial, making the temporary decision the final word on the matter. Even though the injunction is called “temporary”, the court’s decision may effectively be final. If the injunction is granted, the employee may be prevented from working for the competitor during the whole restricted period. If the injunction is refused, the employee may work for the competitor, and by the time the case is finally heard, there may be nothing meaningful left for the court to decide.
Consequences of non-compliance
A defendant in such a case must note that wilful failure to comply with the terms of an injunction order may lead to a sentence of imprisonment.
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