What’s an injunction and when to apply for one
An injunction application is a high risk, urgent application made to court seeking an order that other parties cease or do not take specified actions or less commonly, compelling the parties who are subjects of the order to take certain specified action.
It is common for an injunction, if an application is made, to be applied for at the beginning of legal proceedings.
Important things to note about injunctions
- On notice or without notice? – injunctions are sometimes applied for without notice (known legally as ex parte) being given to the people or entities which may be the subject of the order sought, or on notice, where notice is given and the defendants can contest the application. If applying without notice, the burden to satisfy the court will be even higher.
- Injunctions are a discretionary remedy – an injunction order is an equitable (discretionary) remedy. The judge will have wide discretion whether to make an order and on what terms, or to refuse to make an order.
- An injunction application needs to be urgent – injunction orders are only usually given where there is clear urgency needed and a clear risk of significant damage to the applicant if no order is made.
- Injunction orders are temporary – if you are served with an injunction order you can apply to set it aside or vary it and there will be a date fixed for further consideration by the court even if no application to set aside is made.
- Strong evidence is needed – the evidence required to satisfy the court that an injunction is appropriate needs to be compelling. Gathering and preparation of such evidence, including witness statements, is urgent work and injunction applications are typically very expensive.
- Injunctions are expensive and high risk – the risk associated with seeking an injunction includes significant risk on legal costs. Not only will the legal fees associated with applying be high but there will also need to be an undertaking given on costs which relates to paying the opponents costs if the application does not succeed or is altered or overturned later. Consequently, for injunctions in commercial disputes, the potential benefit or importance of obtaining the order should be weighed up against the risk.
- An injunction application can end a dispute or claim quickly – applying for an injunction is high risk potential high reward. Obtaining an injunction order can be vital to protecting legal interests, money or assets from dissipation. An order can also often result in an early and decisive end to a legal dispute. If things do not work out, your opponent will almost certainly feel emboldened.
- Full and frank disclosure – when applying for an injunction, it is essential to make full disclosure to the court. If there is evidence or facts that do not fully support the application these must be disclosed as well as the strong evidence you have in support of the application.
Legal situations where injunctions are applied for
Some of the most common situations where an injunction application are applied for include:
- Injunctions to prevent publication of defamatory material.
- Freezing orders where there is a risk that money or assets will be moved.
- Search orders where there is a risk that evidence may be tampered with, destroyed or an attempt made to move the evidence or assets.
- Protection from harassment injunctions – most common in the family law context.
- To prevent IP infringement.
- Employment related injunctions – where an employee may be in breach of restrictive covenants and non-competition obligations
- Property injunctions – to prevent sale of or dealing with a property or involving an application for specific performance which applies most commonly in property transactions.
- Specific performance – an order requiring a party to perform a specific act.
Given the importance of and risk associated with an injunction application, this is an area where good legal and tactical advice is essential. Our lawyers have the experience and skill to guide you through the risks and potential benefits.
We have experts in all areas where injunctions may be applied for including employment law, IP law, fraud, family law, property and litigation.
Please do get in contact for an initial discussion about your situation.