Key Takeaways
- An interim injunction is a temporary court order preventing a party from doing something (or requiring them to do something) until a full trial can take place.
- The court applies the American Cyanamid test: is there a serious question to be tried, and does the balance of convenience favour granting the order?
- The applicant must give a cross-undertaking in damages. This is a promise to compensate the respondent if the injunction turns out to have been wrongly granted.
- In urgent cases, an injunction can be applied for without notice to the other party (a without-notice application), and the court can grant it the same day.
- If you breach an injunction, you may be held in contempt of court, which can result in a fine or imprisonment.
- Injunctions are a powerful but expensive remedy, so legal advice before applying is essential.
When one party is doing something that is causing harm (or is about to do so), waiting for a full trial may not be an option. A trial can take months or years to reach. By that point, the damage may be irreversible. That could be due to a confidential customer list shared with a competitor, a sale completed on a disputed property, or a business reputation permanently damaged by false statements.
An interim injunction is the remedy the law provides for these situations. It’s a temporary court order that can stop harmful conduct in its tracks, preserving the position until a court can properly determine the underlying dispute. This guide explains what an interim injunction is, how to apply for one, and what you need to show.
What Is an Interim Injunction?
An interim injunction is a temporary court order made before a full trial takes place. It can be either prohibitory (ordering a party to stop doing something) or mandatory (ordering a party to take a specific action). Prohibitory injunctions are more prevalent.
Common examples include injunctions that:
- Prevent an employee from working for a competitor in breach of a restrictive covenant
- Prevent publication of confidential information
- Restrain a party from completing a transaction on a disputed asset
- Prevent threatened trespass or harassment
An interim injunction lasts only until the full trial (or until it is varied or discharged). At trial, the court will determine the substantive issues and decide whether a permanent injunction is warranted.
Related reading: Freezing Orders in Civil Cases
The Legal Test: American Cyanamid
The leading case on interim injunctions is American Cyanamid v Ethicon [1975] AC 396, which sets out the test courts apply when deciding whether to grant an interim injunction. The court asks two questions.
1. Is There a Serious Question to Be Tried?
The applicant must show that their claim is not frivolous or vexatious. Essentially, that there is a real question to be determined at trial. This is not a high hurdle at the interim stage. The court doesn’t decide who’s likely to win. It simply checks that the claim is arguable.
2. Does the Balance of Convenience Favour Granting the Injunction?
If there is a serious question to be tried, the court then weighs the balance of convenience. The key question is: would damages be an adequate remedy for the applicant if the injunction were refused and they later succeeded at trial?
If yes, the court will usually refuse the injunction and the applicant can be compensated in money. If no, the court is more likely to grant the injunction. That could be because the harm is irreversible, the loss is difficult to quantify, or the claimant’s business would be destroyed
The court also considers whether damages would be an adequate remedy for the respondent if the injunction is granted but the applicant ultimately loses at trial. This is why the cross-undertaking in damages (see below) is required.
If the balance of convenience is evenly poised, the court will look at the overall merits and the status quo. Specifically, whether maintaining or disturbing the current position is less likely to cause injustice.
The Cross-Undertaking in Damages
Before an interim injunction is granted, the court will require the applicant to give a cross-undertaking in damages. This is a formal promise to compensate the respondent for any loss suffered as a result of the injunction if it later transpires that the injunction should not have been granted.
The financial exposure under a cross-undertaking can be significant. Courts will assess the applicant’s ability to meet a potential cross-undertaking award, and a party with limited means may be required to provide security. For example, by paying a sum into court.
Without-Notice Applications
In cases of genuine urgency, it’s possible to apply without notice. This is typically where giving notice to the other party would allow them to frustrate the purpose of the injunction before the hearing. It’s sometimes called an ex parte application.
The court can grant a without-notice injunction on the same day, sometimes within hours. However, the applicant has a high duty of full and frank disclosure. They must tell the court everything relevant, including any matters that might weigh against granting the order, because the respondent isn’t present to put their side.
A without-notice injunction is always temporary. So, the court will list a return date, usually within a few days. At this point, the respondent can appear and argue that the injunction should be varied or set aside.
How to Apply for an Interim Injunction
An application for an interim injunction is made to the County Court (for most civil disputes) or the High Court (for more complex or high-value matters, including commercial disputes). The steps involved are as follows.
- Issue a claim form or, in an emergency, apply for the injunction alongside issuing proceedings.
- Prepare an application notice and a witness statement or affidavit setting out the facts and the grounds for the application.
- Prepare a draft order setting out precisely what the injunction would say. Courts expect the applicant to draft the terms.
- File the application at court and serve it on the respondent (unless applying without notice).
- Attend the hearing. This may be in person, remotely or on the papers depending on urgency and the court’s procedure.
What Happens If an Injunction Is Breached?
Breach of a court injunction is contempt of court. The consequences are serious. The respondent can be fined, have their assets seized or be imprisoned. For this reason, injunctions are powerful instruments. But they also require careful drafting, because the terms must be clear enough for the respondent to understand exactly what they are and are not permitted to do.
Costs and Practical Considerations
Interim injunction applications are often urgent, technically demanding and contested. Legal costs can be substantial, particularly in the High Court. Courts can award costs in injunction proceedings, but the outcome is unpredictable. Any party considering an application should think carefully about the costs and risks involved. In particular, consider the exposure under the cross-undertaking in damages if the injunction is ultimately set aside.
Speak to a Litigation Solicitor Today
Osbourne Pinner’s litigation team handles interim injunction applications across a range of civil and commercial disputes. This includes confidential information, restrictive covenants, property disputes and intellectual property matters. We advise quickly on whether an injunction is the right remedy, help clients prepare the application and supporting evidence, and attend hearings at short notice where urgency requires it.
Please note that this article is for informational purposes only and does not constitute legal advice. We always recommend speaking to a qualified solicitor for advice tailored to your specific circumstances.
If you need urgent advice about applying for an injunction or responding to one, our dispute resolution solicitors can help. We offer a free 30-minute consultation to discuss your situation. You can speak with us via video call or visit our offices in Harrow, Canary Wharf, Piccadilly Circus or Manchester. To arrange your consultation, call 0203 983 5080, email [email protected] or complete the form below.
