What is an Injunction?

An injunctions is a court order that most commonly prohibits someone from doing something, such as stopping unlawful use of a company’s confidential information or breaching its intellectual proprerty rights or compels someone to do something, such as delivery up of items or information in thier possession.

Injunctions can be either interim or final. An interim injunction is a temporary order put in place, usually until the fundamental dispute that has led to the injunction, has been resolved.

Is it worth it?

Applying for an injunction is stressful, costly and time-consuming and requires considerable commitment, often in the early stages of a dispute when you may still be hoping for an amicable or at least easy resolution. However, getting an injunction gives you a considerable early advantage and is a strong signal to the other side that you are committed to winning the dispute.

If you don’t obtain an injunction and for example, someone continues to compete against your company, you will have to deal with that situation, with the only way to recover your losses being a court action that could take months if not years to complete.

Successfully pursuing an application for an injunction not only protects your business, it also helps reach a favourable settlement more quickly.

Acting Quickly

If you want an interim injunction, you must act quickly. By this we mean within a matter of days from becoming aware that a problem has arisen. Delay in applying for an interim injunction will mean that the court will be much less likely to grant you one.


It is possible to obtain an injunction as either an interim or a final remedy.

If you need to act straightaway, you will have to apply for an interim injunction. Such an action will be taken on behalf of the company. If you control the board of directors that’s not a problem. If you don’t, you can apply for the court’s permission to bring a derivative action.

An application for an interim injunction can be made “without notice”, meaning you are applying for an injunction to be granted without the knowledge of the other party. The Court will only grant an interim injunction on a without notice basis if there are good reasons for not letting the other side know what you intend to do, for example where the matter is urgent or where there is a risk that informing the other side will create a serious risk of your position being jeopardised further, such as assets being dissipated before a hearing.

An application for an interim injunction must be supported by evidence. This will be in the form of a witness statement or affidavit including all material facts of which the Court should be made aware and attaching relevant documents.

The application for an interim injunction is made as part of an action to be brought against the other side. If granted on a without notice basis the interim injunction will only be until both parties can attend a further hearing. If granted at a hearing at which both parties are present, an interim injunction is usually said to last until further order of the court or until trial of the underlying issue.

What Will The Court Consider When Granting An Interim Injunction?

The Court’s power to grant injunctions comes from the Senior Courts Act 1981, Section 37. That sets out that a court may grant an injunction, where at the Court’s discretion it thinks it is “just and convenient” to do so.

The meaning of “just and convenient” and the principles the Court will apply when considering whether to grant an interim injunction, have been established in a number of cases, with the most important being American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL 1.

The American Cyanamid Principles that are routinely applied by the Courts, (though they are not cast in stone) are as follows:

The First Test

Is there a cause of action that can be considered as a “serious question” that needs to be settled at a trial? Such a cause of action will need to be set out unequivocally and have evidence to support it, but the test is not too difficult to overcome. The question may be framed as, is there a cause of action that has, at least, some prospect of succeeding?

The Second Test

The “balance of convenience”. Will granting an injunction cause more damage and disruption (inconvenience) that not granting one?

When considering the balance of convenience, the Court will consider these matters:

If the matter went to a trial and the party applying for an injunction (the applicant) won that trial, would damages be an adequate remedy for them? If so, then an injunction will not normally be granted.

If an interim injunction is granted but it later turns out to have been the wrong decision, the question arises as to whether damages would be an adequate remedy for the respondent in those circumstances. If the answer is “no” that will count against an interim injunction being granted.

If there is doubt as to the adequacy of damages then the court will look at all of the facts of the case, with a view to preserving the status quo. In more detail:

The Court will look at the merits of the party’s cases, with a view to establishing if one party has an obviously more meritorious case than the other.

The Court will also look at which set of circumstances should be preserved and how quickly the party seeking the injunction has acted: The question will often arise as to which status quo should be considered; the one that existed at the time of the application for an injunction, or the one that existed before the last significant change. It will often be the latter interpretation that the applicant will want the court to consider. If a director has resigned from a company but is now contacting all of the company’s clients in breach of his obligations, it is the status quo before these actions the applicant will want the court to preserve.

Cross Undertaking As To Damages

Although it is not mandatory, it is very rare to be granted an injunction unless you give an undertaking to the Court that you will pay damages to the other side, if you are granted an interim injunction and it later turns out that it was the wrong thing to do. That means, if you lose your overall case against the other side, you will have to pay damages to them that have arisen from the granting of the interim injunction.


Seeking or opposing an injunction requires many hours of intense activity. In our recent experience costs for injunctions can quickly rise to around £30,000 or more.

Question: Do you need an injunction?

If so, please contact us.