22-23 Civil Litigation Chapter 8 Part 4 Injunctions

LPC: CIVIL LITIGATION CHAPTER 8 PART 4
PART 4 - INJUNCTIONS
4.1 What is an injunction?
An injunction is an order of the court requiring a party to do or to refrain from

doing a given act. Breach of an injunction is potentially punishable as a
contempt of court.
While an injunction can be obtained at trial, if the harm to the applicant is

continuing in the meantime, it is possible to obtain an interim injunction. An
interim injunction is a temporary measure taken at an early stage in the
proceedings (including pre-action), before trial and before any final decision on
the merits of either side’s case. It remains in force until it is discharged by the
court. An interim injunction is often sought when the applicant feels that if the
respondent is unrestrained, it may cause irreparable (or immeasurable)
damage to the applicant, by continuing the conduct which has led to the
dispute.
4.2 Types of injunction

4.2.1 There are two categories of injunction:
1. Perpetual injunction
A perpetual injunction is a final injunction (usually made at trial) that

continues with no limitation of time.
2. Interim injunction
An interim injunction is a provisional injunction, usually made in

circumstances of urgency, to continue in force for a limited period (until
trial or further order). Please note that these used to be known as
“interlocutory injunctions”, so you may see that expression used,
especially in older cases.
In this chapter, we will focus on interim injunctions.
4.2.2 Injunctions can further be categorised as follows:
1. Mandatory injunctions
A mandatory injunction requires the other side to do a specific act.
2. Prohibitory injunctions
A prohibitory injunction requires the other side to refrain from doing an

act.
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CHAPTER 8 PART 4 LPC: CIVIL LITIGATION
3. Quia timet injunctions
You should note that both mandatory and prohibitory injunctions are
also available even where no wrong has yet been committed but has
merely been threatened. This is known as a quia timet injunction (e.g.
to prevent somebody demolishing a wall where this is merely
threatened).
In this module we will focus on interim prohibitory injunctions and

freezing injunctions.
It is also possible to obtain an injunction against all public bodies including

ministers and crown servants (under M v Home Office [1994] 1 A.C.377).
4.3 Jurisdiction
The court has power to grant interim injunctions under CPR 25.1(1)(a).
The High Court’s inherent jurisdiction derives from s.37 of the Senior Courts
Act 1981. This provides that an injunction may be granted where it is “just and
convenient” to do so.
The County Court’s jurisdiction derives from s.38 of the County Courts Act
1984 (as amended). The County Court can make any order the High Court
can make.
Applications for injunctions must generally be made to a Judge, rather than to

a District Judge or Master.
4.4 Interim Injunctions

4.4.1 Nature of the remedy
An injunction is both an equitable and a discretionary remedy.
Accordingly, the equitable maxims apply: “he who comes to equity must come
with clean hands”, “delay defeats equity” and “equity will not act in vain” etc.
The court has a complete discretion whether to make an order for an
injunction, so there is no automatic right to an injunction just because all the
“requirements” have been met and the facts are similar to a previous case.
4.4.2 Need for a cause of action
An injunction is not a cause of action in itself - it is only a remedy. In other

words, you cannot sue for an injunction. You must have a pre-existing cause
of action within the court’s jurisdiction. The rules for freezing orders in this
regard are slightly different and are referred to below.
Note, however, that this does not require the applicant to have already issued
proceedings when the application for an interim injunction is made.
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4.4.3 Damages must be an inadequate remedy
The court will not award an injunction where damages would be an

appropriate remedy. In other words, if the problem could be resolved by the
respondent paying damages to the applicant following a successful trial, the
court will order this, rather than an injunction.
Damages will be inappropriate if:
1. The harm is serious and likely to continue.

It is not a one-off breach, but something that is likely to continue.
2. The harm is irreparable.

For example, someone’s privacy may be at stake.
3. The harm is difficult to assess or cannot be quantified in financial

terms.
For example, loss of goodwill and loss of reputation.
4. The respondent has no means of paying damages.

The respondent has no money and could not pay damages if ordered to
do so.
4.5 The court’s approach to interim injunctions

4.5.1 General
As explained above, injunctions are discretionary remedies. The court’s

approach to the exercise of its discretion is, therefore, determined by case
law.
Pursuant to CPR 1.2(a) the court must seek to give effect to the overriding
objective when it exercises any power given to it by the CPRs and in
considering whether it would be “just and convenient” to order the injunction:
see s.37(1) Senior Courts Act 1981.
4.5.2 Interim mandatory injunction
The test followed by the court is that a mandatory injunction will be granted if:
1. the applicant will suffer serious harm if the injunction is not granted;
2. the applicant is likely to succeed at trial; and
3. the respondent is not required to incur expenditure disproportionate to
the applicant’s harm.
The test is more difficult to meet than that used for interim prohibitory
injunctions as the courts are more reluctant to force parties to do something

than they are to stop them from doing something. Accordingly, interim
prohibitory injunctions are far more common.
4.6 Interim prohibitory Injunctions

4.6.1 American Cyanamid guidelines
In American Cyanamid Co v Ethicon Ltd [1975] AC 396, Lord Diplock laid
down guidelines on how the court’s discretion to grant an interim prohibitory
injunction should be exercised in the usual type of case.
It is, however, important to remember that these are guidelines; they are not
strict legal requirements or statutory provisions. The courts have accordingly
applied them with some flexibility.
As mentioned above, before applying the steps of the American Cyanamid

guidelines, one must ensure that there is an existing cause of action.
Lord Diplock stated his guidelines in a threefold ‘test’, as follows:-
1. Is there a serious question to be tried?
If the answer to that question is “yes”, then there are two further related
questions to answer which are:-
2. Would damages be an adequate remedy for a party injured by the court’s

grant of, or failure to grant, an injunction?
3. If not, where does the “balance of convenience” lie?
These guidelines are considered in more detail below.
Step 1
Is there a serious question to be tried?
Before American Cyanamid, the courts would only grant an interim

prohibitory injunction if the applicant could establish a prima facie case on the
merits. As a result, the courts needed to consider the respective merits of
each party’s case in some detail. This encouraged the parties to file detailed
evidence, which led to lengthy hearings. For example, in American
Cyanamid, the first instance hearing had taken three days, and the appeal in
the Court of Appeal lasted eight days.
In American Cyanamid, Lord Diplock pointed out that it was generally

inappropriate for the court to consider the merits in detail, which could involve
trying to resolve conflicts of evidence and decide difficult questions of law at
an early stage. He said that the court only needs to be satisfied that there is a
serious question of fact or law to be decided.
He explained this by saying that the court must be satisfied that “the claim is
not frivolous or vexatious” and that “there is a serious question to be tried”. In

many cases, this is not a difficult hurdle to surmount. However, if this test
cannot be met, the injunction will generally be refused.
Step 2
Would damages be an adequate remedy for a party injured by the court’s

grant of, or failure to grant, an injunction?
If there is a serious question to be tried, the court will go on to consider

damages and, importantly, whether damages are an adequate remedy in the
case being considered. When considering the adequacy of damages, the
court will firstly consider the issue from the applicant’s perspective (as detailed
further below). Depending upon the outcome of this analysis, the court might
then go on to consider the same issue from the respondent’s perspective.
Step 2(A) – Damages for the applicant
The governing principle is that the court should first consider whether, if the
applicant succeeds at the eventual trial, that applicant would be adequately
compensated by damages for any loss caused by the refusal to grant an
interim injunction.
In other words, the court should generally refuse an injunction (however strong
the applicant’s case) if the applicant could be adequately compensated in
damages. In assessing this question, the court will also consider whether the
respondent is financially in a position to pay those damages.
If damages would be an adequate remedy for the applicant (and if the

respondent is financially able to satisfy any such award of damages) then the
application for an interim prohibitory injunction will normally be refused by the
court.
If damages would not be an adequate remedy for the applicant (or if the
respondent is not financially able to satisfy any such award of damages), the
court will generally go on to consider the remaining parts of the American
Cyanamid guidelines.
Step 2(B) – Damages for the respondent
If the court finds that damages would not be an adequate remedy for the
applicant, then – and only then – will the court go on to consider whether, if
the injunction were granted, the respondent would be adequately
compensated under the applicant’s undertaking as to damages if it
transpires that the injunction was wrongly granted. The applicant’s
‘undertaking as to damages’ is the applicant’s undertaking (to the court) to
compensate the respondent for any loss incurred by the respondent during the
currency of the injunction, if it later appears that the injunction was wrongly
granted. This undertaking is normally required by the court as a prerequisite
for the interim prohibitory injunction being granted. In some cases, the
applicant might be required to “put its money where its mouth is” and provide a
payment into court or some form of guarantee.

If damages from the applicant’s undertaking would be an adequate remedy to

the respondent (of course, taking into account whether the applicant would be
in a position to pay them), there would be no reason upon this ground to
refuse an interim prohibitory injunction.
Note: Interim prohibitory injunctions are relatively common and the courts
have, accordingly, applied the American Cyanamid guidelines in a very wide
variety of cases. Given that they are only ‘guidelines’, they have been applied
flexibly by the courts. On this basis, there is often a ‘blurring’ of the different
steps. Step 2(B) (the adequacy of damages for the respondent) is, in
particular, sometimes considered as part of step 3 (the balance of
convenience – see immediately below), rather than step 2. This does not
follow exactly Lord Diplock’s original formulation of the American Cyanamid
guidelines, but it does reflect the fact that the adequacy of damages to the
applicant is often a determinative factor in deciding whether the injunction will
or will not be granted at step 2.
If damages are an adequate remedy for the applicant, it is unlikely that the
injunction will be granted. If damages are not an adequate remedy for the
applicant, then there is a strong argument that the injunction should be
granted, subject to any disproportionate inconvenience being caused to the
respondent. A major ‘inconvenience’ which a respondent is bound to argue is
that damages would not be an adequate remedy for it if it transpires that the
injunction should not have been granted and/or that the applicant could not, in
any event, afford to satisfy any damages order made against it.
For an example of where the Court of Appeal found that the adequacy of
damages was uncertain (and, therefore, allowed an interim injunction to
continue) see Leo Pharma A/S and another v Sandoz Ltd [2008] EWCA Civ
850.
Step 3
Where does the “balance of convenience” lie?
The courts seek, as far as possible, to resolve injunctions by finding an

answer from step 2. It is only where step 2 does not resolve the matter that
Lord Diplock said that step 3, the balance of convenience, ought to be
considered.
There may be a hint in Lord Diplock’s comment on the balance of convenience

test which shows why this step is so complicated. Lord Diplock said: “It would
be unwise to attempt even to list all the various matters which may need to be
taken into consideration in deciding where the balance lies, let alone to
suggest the relative weight to be attached to them. These will vary from case
to case”.
Accordingly, having just quoted Lord Diplock’s dictum, Laddie J then said “the
reality is that the balance of convenience will need to be considered in most
cases because evidence relating to the adequacy of damages normally will be
contradictory and there will be no possibility of resolving the differences by
cross-examination….It follows that in most cases it will be the exercise of
taking into account all the issues relevant to the balance of convenience which

will be the major task of the court faced with an application for interlocutory
relief.” Series 5 Software Limited v Clarke & Others [1996] 1 All ER 853.
As mentioned above, the distinction between step 2 and step 3 of American

Cyanamid is sometimes blurred and the adequacy of damages is often
considered as part of the balance of convenience. If both parties are large
multinationals which can easily (i) meet any award of damages made against
them and/or (ii) bear the financial burden of the injunction being in place
pending trial, then this might be a factor which ‘swings’ the balance of
convenience in favour of the injunction being granted. Having said that, one
party may be a small enterprise, with only a small and/or precarious foothold
in its particular market, and the granting of the injunction/refusal to grant the
injunction might wipe out its business. The court will ultimately have to factor
this into its consideration as to whether to grant the injunction or not.
When considering the balance of convenience, the court will also consider the
‘equity’ of the situation. For example, has the applicant delayed in any way?
Would it be unjust for the injunction to be granted, given the length of time that
the respondent has been undertaking the course of action complained of by
the applicant? Equitable factors are considered in more detail below.
The court might also have regard to the length of time that it will take for the
final trial to be heard. The prohibitory injunction is only “interim”, in that it
seeks to preserve the parties’ positions until their rights and obligations are
definitively decided at trial. If the trial is due to be heard relatively soon (or
could be expedited in some way), then this might be a factor leading to the
injunction being granted.
In certain cases, there might also be a public interest in the injunction being
granted or refused by the court.
Ultimately: Will one party be disproportionately harmed if the injunction is or is

not granted? The precise factors to be considered by the court when deciding
the balance of convenience will be determined on a case by case basis.
Beyond the ‘balance of convenience’
In many cases, the balance of convenience might be very finely balanced. The
court must, however, make a definitive judgment on whether the injunction
should or should not be granted. If the balance of convenience is inconclusive
or too finely balanced to decide, the court will accordingly consider the
following matters in reaching its decision:
The ‘status quo’
Lord Diplock said (which was cited with approval in Fellowes & Son v Fisher
[1975] 2 All ER 829), where other factors appear to be evenly balanced, “it is a
counsel of prudence to take such measures as are calculated to preserve the
status quo”.
Generally, this will be the position before the respondent started the conduct
that the applicant is complaining about. This is often referred to as the ‘status

quo ante’. For example: the respondent must stop using the confidential
information.
One reason why the ‘status quo’ test is problematic is that the relevant point of
time may be difficult to determine and may vary (per Megaw L.J. Alfred
Dunhill Ltd v Sunoptic SA [1977] F.S.R. 337 CA at 376). The details of this
are beyond the scope of this module.
The merits of the case
As a last resort, if all other factors appear to be evenly balanced, the court can
look at the merits of the case (as revealed by the written evidence adduced for
the interim application). The court must not, however, conduct a mini-trial and
this should only be done where it is apparent upon the facts disclosed by
evidence as to which there is no credible dispute that the strength of one
party’s case is disproportionate to that of the other party.
Other special factors
The courts have also said that there may be other special factors to be taken
into consideration in the particular circumstances of individual types of case.
Again, the details of this are beyond the scope of this module.
4.6.2 Exceptions
There are, however, various categories of cases where the American

Cyanamid guidelines may not apply, such as restraint of trade cases, where
the grant or refusal of the injunction would result in the final disposal of the
claim, where there is no arguable defence to the applicant’s claim, and in
privacy claims. In such cases, other equitable considerations or tests will
apply. However, these are beyond the scope of this course.
4.6.3 American Cyanamid in practice
Despite the American Cyanamid guidelines, the courts often do look at the
merits of a case in deciding whether or not to grant an interim injunction. For
example, Series 5 Software Ltd v Clarke [1996] 1 All ER 853.
4.7 Defences
The respondent may raise the following equitable defences and bars to relief.
4.7.1 Delay
Delay may persuade the court to refuse the injunction sought, even if the
conduct does not amount to acquiescence.

4.7.2 Acquiescence
The applicant’s conduct (usually inactivity) induces the respondent to believe

something which he then acts on to his detriment.
4.7.3 Inequitable conduct by the applicant (‘clean hands’)
The applicant does not have clean hands.

4.7.4 Hardship
This is usually taken into account when the court considers where the balance
of convenience lies.
4.7.5 Equity does not act in vain
An injunction to restrain breach of confidence was refused because there had

already been widespread publication: Attorney General v Guardian
Newspapers Ltd (No. 2) [1990] 1 AC 109.
4.7.6 Court cannot enforce the order in question
An injunction to force a shop tenant to keep open for trading was not granted
because the court could not enforce any such order: Cooperative Insurance
Society Ltd v Argyll Stores (Holdings) Ltd [1997] 23 EG 14.
4.8 Procedure
4.8.1 Who may apply?
Either a claimant or a defendant may apply for an interim injunction. The

parties to such an application are referred to as the applicant and the
respondent.
An interim injunction may be applied for even though it is not claimed as a final
remedy.
4.8.2 When may an application be made?
An application is generally made after issue of proceedings but it can be made

before proceedings are issued pursuant to CPR 25.2(1)(a) if the matter is
urgent (i) or (ii) if it is otherwise necessary to do so in the interests of justice:
see CPR 25.2(2)(b).
The court will usually direct the applicant to issue and serve the claim form as
soon as practicable and to proceed with the main action quickly.
4.8.3 How is the application made?
1. With notice or without notice

The application may be made with notice or without notice. See CPR
25.3(1).
An application for an interim injunction may be made with notice in the

usual way (see part 1 of this chapter). However, in circumstances of
real urgency, the application may be made without notice to the other
side. If granted following a ‘without notice’ hearing, the injunction will
generally last for a limited period, and will have to be continued by a
further order made at a subsequent ‘with notice’ hearing a few days
later.
Although situations where it is justifiable to give no notice will be less

common, the court may grant an injunction on an application made
without notice if it appears to the court that there are good reasons for
not giving notice: see CPR 25.3(1).
In Cinpres Gas Injection v Melea [2005] All ER (D) 209 the court held
that the more serious the nature of the injunction applied for, the more
desirable it was that notice was given to the respondent to the
application. There may however be some circumstances where
genuinely urgent circumstances existed or when the giving of notice
would frustrate the purpose of the relief sought (as is the case for
freezing injunctions, on which see below) or where it was not practicable
to do so in the time available.
An applicant who applies for an interim remedy without notice to the

respondent is under a duty to investigate the facts and fairly present the
evidence on which he relies. This means that the applicant must
disclose fully to the court all matters relevant to the application, including
matters which are or may be adverse to it.
In Memory Corporation plc v Sidhu [2000] All ER (D) 46, Mummery

LJ said that this is a “high duty” and it requires the applicant to make full,
fair and accurate disclosure of material information to the court and to
draw the court’s attention to “significant factual, legal and procedural
aspects of the case”.
In an interim injunction case, if the duty of full and fair disclosure is not
observed, the court may discharge the injunction. (In fact, the court may
discharge the injunction even if, after full inquiry, the view is taken that
the order made was just and convenient and would probably have been
made even if there had been full disclosure.) It is no excuse for an
applicant to say that he was not aware of the importance of the matters
he omitted to state.
However, the case of Kazakhstan Kagazy plc v Arip [2014] EWCA Civ
381 stated that the applicant does not have to rehearse a detailed
analysis of possible inferences that the respondent might seek to rely
on.
It is important to note, however, that the court has full discretion in these
matters. In Sita UK Group Holdings Ltd and another v Serruys and
others [2010] EWHC 698, the court allowed an injunction to continue

despite a material and deliberate non-disclosure because the claimants

had a good arguable case for the injunction. Instead, the claimants were
ordered to pay costs of the application on an indemnity basis.
2. Evidence
CPR 25.3(3) states that if the applicant is making an application without

giving notice, the evidence in support must state the reasons why notice
has not been given. Generally, the evidence in support of the application
will be a witness statement and this will refer to the following;
a) the cause of action
b) the injunction sought
c) why the injunction should be granted
d) if the application is made without notice, why notice was not given
e) the ability to satisfy a cross-undertaking in damages
3. Other documents required for the interim application
As with any other interim application (see part 1 of this chapter) the court
will also need:
a) an application notice
b) a draft order – see Appendix A at the end of this chapter which
contains a precedent order for an interim prohibitory injunction and
paragraph 4.9 below which explains its provisions
c) a statement of costs – even though the case may be at a
preliminary stage the court will expect you to prepare a statement
of costs if time allows
4. Procedure
With notice procedure

a) Issue application notice.
b) Application notice, evidence in support and draft order are filed
with the court. A copy of the draft order should also be filed in
electronic form.
c) Copy application notice, evidence in support and draft order are
served on the respondent at least 3 clear days before the hearing.
The respondent will serve and file evidence in reply as soon as
possible.
d) Statements of costs are filed and exchanged not less than 24
hours before the hearing.
e) With notice hearing takes place.
f) The resulting order for the injunction will then be served on the
respondent.

Without notice procedure

a) Issue application notice (where time permits).
b) Application notice, evidence in support and draft order are filed
with the court. (If possible, this should be done at least 2 hours
before the hearing.) The hearing takes place.
c) The applicant will then notify the respondent of the application and
the order for the injunction will be served on the respondent. The
application notice, evidence in support and draft order will also be
served on the respondent together with a note of what took place
at the without notice hearing and the date of the with notice
hearing.
d) The parties prepare for the with notice hearing in the usual way.
It is normal at the without notice hearing for the court to set a return date
(i.e. a date for the with notice hearing) and for the interim injunction to be
effective until the return date as mentioned above.
If the matter is urgent, a without notice application may be made before

the application notice has been issued. A draft order will be provided at
the hearing, and the application notice and evidence in support must be
filed with the court on the same or next working day (or as ordered by
the court): 25A PD 4.3(2).
Urgent applications
In cases of extreme urgency the court may deal with a without notice
application by telephone: see 25 A PD 4.2 and 4.5.
Generally, a without notice application is made after proceedings have

been commenced. In urgent cases, the application may be made prior to
the issue of a claim form. The applicant will undertake to issue a claim
form immediately or the court will give directions for the commencement
of the claim. The claim form will generally be served with the order for
the injunction. See 25A PD 4.4(1) and (2).
4.9 Contents of order

There is no form of order specified in the CPR. An example form of order is
attached at Appendix A. Please note the following:
1. Penal notice
On the front page, there is a warning that if the respondent does not
comply with the terms of the order, the respondent may be held to be in
contempt of court and imprisoned or fined.
2. Undertakings: 25A PD 5.1

Certain undertakings will generally be provided:

 If the application notice has not been issued, the applicant will
undertake to issue this as soon as practicable.
 If proceedings have not been issued, the applicant will undertake to
issue and serve proceedings as soon as practicable.
 If the injunction is obtained at a without notice hearing, the applicant
will undertake to serve the application notice, the Order and the
evidence in support of the application on the respondent.
 The applicant will give an undertaking in damages (see above).
3. Duration: 25A PD 5.4

If the injunction is obtained at a with notice hearing, it will generally be
granted until trial or further order.
If it is obtained at a without notice hearing, it will generally be granted

until a subsequent with notice hearing.
4. Operative part of the order: 25A PD 5.5

The part of the order that prohibits the respondent from doing the act in
question must be very specific and as narrow as possible.
4.10 With notice hearing following a without notice application

After an injunction has been made at a without notice hearing, at the
subsequent with notice hearing the court may make the following orders:
1. Order can be maintained

The court may decide to keep the injunction in place until the trial of the
substantive matter.
2. Discharge
The court may decide to discharge the injunction entirely, and if so will
often award damages to the respondent (see point 4 below).
3. Variation
The court may decide to keep the injunction in place until the trial but
with its terms being varied. Depending on the extent of the variations this
order may also be coupled with an order for damages.
4. Enforcement of the applicant’s undertaking/inquiry into damages

If it transpires that the injunction should not have been granted, the court
may order an inquiry into damages to be paid by the applicant to the
respondent. The court may order the applicant to pay damages in
accordance with the applicant’s undertaking in damages.

5. Acceptance of undertaking by the respondent

The court may accept an undertaking in damages from the respondent
not to do the acts in question (which can, in the case of breach, also
constitute a contempt of court).
The court will also make an order in relation to the costs of the interim
application for the injunction, applying its discretion in the usual way. The
court will consider the costs of the without notice hearing as well as those of
the with notice hearing at this time.
4.11 Sanctions for breach

Breach of an injunction or of an undertaking to the court is potentially
punishable as a contempt of court. It must be proved beyond reasonable
doubt. Penalties include:
 Committal to prison
 A fine
 Sequestration of assets
Note: If a third party knows of the order and breaches it, this can also amount
to contempt of court: Attorney General v Times Newspapers Ltd [1992] 1
AC 191.
4.12 Freezing injunctions1

4.12.1 What is a freezing injunction?
A freezing injunction (formerly known as a Mareva injunction) is an interim

order restraining a party from removing assets located within the jurisdiction
(i.e withing England and Wales) out of the jurisdiction, or from dealing with
assets whether they are located within the jurisdiction or not: CPR 25.1(1)(f).
The purpose of a freezing injunction is to prevent the respondent’s assets

being dissipated to frustrate the enforcement of any judgment the applicant
may obtain. Usually the order will be restricted to assets not exceeding the
value of the claim against the respondent (together with a provision for costs).
The freezing injunction is derived from the order made by the Court of Appeal
in Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1
All ER 213, where the court decided that it had the power to grant an interim
injunction restraining the dissipation of assets. The court’s jurisdiction to make
1
You will, in practice, frequently hear these referred to as “freezing orders” rather than
“freezing injunctions”.

such orders was subsequently acknowledged in s.37 Senior Courts Act 1981
(and the County Court Remedies Regulations 1991) and CPR 25.1 (1)(f).
4.12.2 Jurisdiction
The court has the power to grant both domestic freezing injunctions
(applicable only to England and Wales which we focus on below) and
worldwide freezing injunctions (applicable worldwide – see the guidelines as to
when this will be granted in Dadourian Group International v Simms [2006]
EWCA 399): CPR 25.1(1)(f).
A freezing injunction is generally available in the High Court. Freezing

injunctions can be granted by the County Court but will be allocated to a
Circuit Judge (2B PD 8.4).
4.12.3 Effect of a freezing injunction
1. All assets mentioned in the order are frozen.

You would generally say that the respondent may not remove any of his
assets, up to a certain value. You would then specify any assets you
know about, such as the respondent’s house, car, money in a certain
bank account, and so on. Also, the respondent is allowed to spend a
reasonable amount each week.
2. The respondent (or anyone else with notice of the order) will be in
contempt of court if it breaches its terms.
You would serve a copy of the order on any third parties you know about
– for example, the bank where the respondent has a bank account.
Such third parties must police the order and prevent any breach of its
terms. Otherwise, such third parties will run the risk of being in
contempt.
3. The applicant is obliged to press ahead with the action.

As the respondent’s assets are frozen, it is important that the applicant
presses on with the proceedings.
4.13 Requirements
4.13.1 General requirements
Discretion
As stated above, s. 37(1) Senior Courts Act 1981 enables the court to grant a
freezing injunction where it appears “just and convenient” to do so.
Even if all the requirements (set out below) are met, the court retains
discretion to refuse this relief if freezing the respondent’s assets would not be
in the interests of justice. As it is such a draconian remedy, the courts will not
grant it lightly.

Equitable
As with any injunction, a freezing injunction is an equitable remedy and the

usual equitable maxims apply.
4.13.2 Specific requirements
The specific requirements which apply to freezing injunctions (derived from the
Mareva case) are:
1. A substantive cause of action justiciable in England and Wales

The applicant must normally have a substantive cause of action against
the respondent, which can be brought in England and Wales. A freezing
injunction is a remedy - it is not a cause of action. The court may in
limited circumstances grant a freezing injunction against a third party
who will not be the defendant to subsequent litigation where the assets
are held on a bare trust for the defendant (T.S.B. Private Bank
International SA v Chabra and another [1992] 2 All ER 245 and
Mercantile Group A.G. v Aiyela and others [1994] 1 All ER 110).
As mentioned above, s 25 Civil Jurisdiction and Judgments Act 1982

enables the High Court to grant interim relief in cases proceeding in
courts other than the courts of England and Wales. In such
circumstances, an order is sought where there is no “related claim” –
there is no claim made over which the English court has jurisdiction. This
is referred to in CPR 25.4(1)(a).
2. A good arguable case

The applicant must show that it has a “good arguable case” against the
respondent which is a phrase used by Lord Denning MR in Rasu
Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara (Pertamina) ([1977] 3 All ER 324).
In Ninemia Maritime Corp v Trave Schiffahrts GmbH & Co KG (the

Niedersachsen) [1983] 1 WLR 1412, Mustill J said that “a good
arguable case” is one which is “more than barely capable of serious
argument, and yet not necessarily one which the judge believes to have
a better than 50% chance of success”.
This is a more burdensome test than for a prohibitory injunction.
3. The respondent has assets within the jurisdiction

The applicant must show that the respondent has assets in the
jurisdiction. This stems from the principle that equity will not act in vain. If
an injunction will not be effective, it will not be granted.
Assets include money, shares, securities, cars, vessels, aircraft,

jewellery, paintings etc.

4. There is a real risk that the respondent may remove from the
jurisdiction, dispose of, dissipate or hide his assets in any way that
will hinder enforcement of any judgment the applicant may obtain.
Factors the court will consider include the following:
 Is there any evidence that the respondent has been dishonest?
 Are there any incidents of debt default by the respondent?
 Is there evidence that the respondent has started to remove or
dispose of assets?
 Where are the respondent’s assets located? Are English judgments
enforceable there?
 Where is the respondent based? Is the respondent in a tax haven?
The obligation to make full and fair disclosure (see above) will oblige the
applicant to tell the court of any evidence which suggests there is no real
risk. If in doubt as to the relevance of a piece of information on this (or
any of the other requirements), it should be disclosed. In any case of
possible relevance, the judge, not the applicant’s solicitors, should make
the decision.
4.14 Procedure
How is the application made?
A freezing injunction is ordered against a respondent who is prepared to

dissipate assets to frustrate any judgment the applicant may obtain. To be
effective, the application is generally made without informing the respondent
(i.e. without notice) and often before the claim form has even been served.
An application could still be made during the course of proceedings if, for
instance, the applicant discovered the respondent’s plans to make a sudden
move out of the country. Freezing injunctions can also be granted after trial to
preserve assets until the judgment has been enforced.
The application is usually made to a Judge sitting in private (where possible,

the relevant papers should be lodged with the Judge at least two hours before
the hearing to allow the Judge to read them in advance).
The same procedure as for other interim applications applies (see part 1 of
this chapter and paragraph 4.8 above) supplemented by CPR 25.
Steps
1. Documents
a) Application notice
In urgent cases, a draft application notice will be prepared. This
will then be issued after the hearing.
b) Draft order

A draft order must be provided. A standard form order is annexed

to the CPR (for both ordinary and worldwide freezing injunctions) –
see Appendix B and paragraph 4.15 below.
The applicant must give an undertaking to pay damages to the

respondent if it transpires that the order should not have been
granted. This will be incorporated into the order. This undertaking
in damages should normally be supported by a bank guarantee for
a fixed amount, which the applicant undertakes to obtain within a
certain period of time.
c) Affidavit in support
This application must be supported by affidavit evidence (CPR
25APD3.1), making full and fair disclosure of all material facts. The
affidavit will refer to the 4 grounds referred to above and how these
are made out. In urgent cases, the applicant may rely on evidence
in draft form or provided orally.
d) Claim form
Generally, the application will be made after the claim form has
been issued, but before it is served on the respondent - otherwise,
the respondent would be alerted. In urgent cases, the application
can be made before it has been issued. It will then be issued after
the hearing.
e) Statement of costs
If time permits the court will expect the applicant to prepare a
statement of its costs to date in readiness for the with notice
hearing, in line with other interim applications.
2. Without notice hearing

The injunction is obtained at the without notice hearing before a Judge
sitting in private.
3. After the without notice hearing

a) Issue
If the application notice and/or claim form had not been issued
prior to the hearing, they will be issued immediately afterwards. It
may also be necessary to swear the affidavit in support.
b) Service
The Order will be served on the respondent (and any relevant third
parties - for example, the respondent’s bank) without delay. The
claim form, application notice and evidence in support will also be
served on the respondent. There is also a duty on the applicant to
provide the respondent, and any person affected by the order, with
a full note of the hearing. This is so that they know what case they

have to meet. This obligation was established in Interoute

Telecommunications (UK) Ltd v Fashion Gossip Ltd, Times
(1999) 10 November 1999.
c) Guarantee
The applicant will proceed to obtain a bank guarantee in support of
the undertaking in damages. A copy of this will be served on the
respondent.
4.15 Terms and effect of the order

An example order is shown at Appendix B. It follows the form of the precedent
set out in CPR 25. It includes the obligation to inform the applicant in writing
at once of all his assets in England and Wales and to confirm this by way of
affidavit within 2 days of the order (see paragraphs 9 and 10 of Appendix B).
4.16 With notice hearing: variation and discharge

If an application for a freezing injunction is successful, the order made will
normally last for a very brief period in order to protect the applicant’s position
until the matter can be brought back before the court on a with notice basis. In
this regard see paragraphs 3 and 5 of the precedent order at Appendix B.
Generally, a without notice order will not be made to last for more than seven
days.
The respondent may make an application to vary before the on notice hearing.
Alternatively he may apply for the order to be varied or discharged at the on
notice hearing. At the on notice hearing the order may, of course, be
continued.
Grounds for a discharge or variation include:

1. The order should not have been made.
2. The respondent has provided the security required in the order.
3. The applicant is guilty of non-disclosure.
4. There has been a procedural irregularity.
Note:
1. If the order is discharged the judge must consider whether damages

should be assessed and paid to the respondent immediately.
2. The court has discretion to decide that, even though there has been a
non-disclosure etc., the order is still justified and to continue it.
3. The applicant’s duty to bring to the attention of the court any material
change in circumstances after the freezing injunction has been granted:
Commercial Bank of the Near East Ltd v A, B, C and D [1989] 2
Lloyd’s Rep 319.

Further reading
CPR 23, PD23A, CPR 25 and PD25A.

This page is intentionally blank

LPC: CIVIL LITIGATION CHAPTER 8: APPENDIX
Appendix A (Precedent order for interim prohibitory injunction)
IN THE HIGH COURT OF JUSTICE Case Number 20xx-HC-6077

QUEEN’S BENCH DIVISION
The Honourable Mr Justice Thomas (Judge in private)
[Date]
BETWEEN:
Hedwig Products Limited

Applicant
AND
Dudley Technical Limited

Respondent
Seal
____________________________
ORDER FOR AN INJUNCTION
____________________________
IMPORTANT
NOTICE TO THE RESPONDENT
This Order prohibits you from doing the acts set out in this Order. You should read it
carefully. You are advised to consult a Solicitor as soon as possible. You have a right
to ask the court to vary or discharge this Order.
PENAL NOTICE
If you the within-named Dudley Technical Limited do not comply with this Order you
may be held to be in contempt of Court and any of your directors may be imprisoned or
fined and your assets may be seized.
NOTICE
Disobedience of this Order is a contempt of court punishable by sequestration of the
assets of the Respondent company and by imprisonment of any individual responsible.
An application was made on 5 October 20xx by Counsel for the Applicant to the Judge
and was attended by Counsel for the Respondent. The Judge heard the application
and read the witness statements listed in Schedule 1 and accepted the undertakings in
Schedule 2 at the end of this Order.
IT IS ORDERED that
THE INJUNCTION
(1) Until after final judgment in this claim the Respondent must not:
CHAPTER 8: APPENDIX LPC: CIVIL LITIGATION
(a) License the right to distribute the Dudley Digital Camera anywhere in the world
in the term of six years from 21 May 20xx granted to the Applicant Hedwig
Products Limited under an agreement between the Applicant and Respondent
dated 21 May 20xx;
(b) Sell Dudley Digital Cameras other than through the Applicant Hedwig Products
Limited;
(c) Assert or represent to customers that the Applicant Hedwig Products Limited
are not the sole distributors of the Dudley Digital Camera.
COSTS OF THE APPLICATION

(1)The costs of this Application are to be the Applicant’s costs in the case.
VARIATION OR DISCHARGE OF THIS ORDER

The Respondent may apply to the court at any time to vary or discharge this Order, but
if they wish to do so they must first inform the Applicant’s Solicitors in writing at least 48
hours beforehand.
NAME AND ADDRESS OF APPLICANT’S SOLICITORS

The Applicant’s Solicitors are:
Dumbledore and Associates of 8 Main Street, Islington, London N1 1HP
Ref: PP/1471 Telephone: 020 7624 1274
INTERPRETATION OF THIS ORDER

(1) In this Order the words “he” “him” or “his” include “she” “her” or “hers” and “it” or
“its”.
(2) Where there are two or more Respondents then (unless the contrary appears):
(a) references to “the Respondent” means both or all of them;
(b) an Order requiring “the Respondent” to do or not to do anything requires each
Respondent to do or not do it.
THE EFFECT OF THIS ORDER

(1) A Respondent who is an individual who is ordered not to do something must not do
it himself or in any other way. He must not do it through others acting on his behalf
or on his instructions or with his encouragement.
(2) A Respondent which is a corporation and which is ordered not to do something
must not do it itself or by its directors, officers, employees or agents or in any other
way.

SCHEDULE 1
Witness Statements
The Judge read the following witness statements before making this Order:
(1) Peter Potter, made on 1 October 20xx
(2) David Dursley, made on 1 October 20xx
SCHEDULE 2
Undertakings given to the Court by the Applicant
If the Court later finds that this Order has caused loss to the Respondent, and decides
that the Respondent should be compensated for that loss, the Applicant will comply
with any Order the Court may make.
All communications to the court about this Order should be sent to Room E07, Royal
Courts of Justice, Strand, London WC2A 2LL quoting the case number. The office is
open between 10 a.m. and 4.30 p.m. Monday to Friday. The telephone number is 020
7947 6010.

This page is intentionally blank

Appendix B (Precedent order for a freezing injunction)

**Freezing Injunction** IN THE HIGH COURT OF JUSTICE
Order to restrain assets in CHANCERY DIVISION
England and Wales,
Before The Honourable Mr Justice Woods
HC 20xx C 1234
[Dated]
Applicant ELAINE BRIDGE
Seal
Respondent DAVID HUMPHRIES
David Humphries
of 125 Cedar Road, London SW1
PENAL NOTICE
IF YOU THE WITHIN NAMED DAVID HUMPHRIES DISOBEY THIS ORDER

YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND LIABLE
TO IMPRISONMENT OR FINED OR YOUR ASSETS SEIZED.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING
WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF
THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY
BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.

THIS ORDER
1. This is a Freezing Injunction made against David Humphries (‘the Respondent’)

on 5 October 20xx by Mr Justice Woods on the application of Elaine Bridge (‘the
Applicant’). The Judge read the Affidavits listed in Schedule A and accepted the
undertakings set out in Schedule B at the end of this Order.
2. This Order was made at a hearing without notice to the Respondent. The
Respondent has a right to apply to the court to vary or discharge the order – see
paragraph 13 below.
3. There will be a further hearing in respect of this Order on 11 October 20xx (‘the
return date’).
4. If there is more than one Respondent –

a) unless otherwise stated, references in this Order to ‘the Respondent’ mean
both or all of them; and
b) this Order is effective against any Respondent on whom it is served or who
is given notice of it.
5. Until the return date or further Order of the court, the Respondent must not
remove from England and Wales or in any way dispose of, deal with or diminish
the value of any of his assets which are in England and Wales up to the value of
£85,000.
6. Paragraph 5 applies to all the Respondent’s assets whether or not they are in his
own name and whether they are solely or jointly owned. For the purpose of this
Order the Respondent’s assets include any asset which he has the power,
directly or indirectly, to dispose of or deal with as if it were his own. The
Respondent is to be regarded as having such power if a third party holds or
controls the asset in accordance with his direct or indirect instructions.
7. This prohibition includes the following assets in particular –

a) the property known as 125 Cedar Road, London SW1 or the net sale
money after payment of any mortgages if it has been sold;
b) any money standing to the credit of any bank account including the amount
of any cheque drawn on such account which has not been cleared.
8. If the total value free of charges or other securities (‘unencumbered value’) of the
Respondent’s assets in England and Wales exceeds £85,000, the Respondent
may remove any of those assets from England and Wales or may dispose of or
deal with them so long as the total unencumbered value of his assets still in
England and Wales remains above £ 85,000.
9. (1) Unless paragraph (2) applies, the Respondent must immediately and to the
best of his ability inform the Applicant’s solicitors of all his assets in
England and Wales whether in his own name or not and whether solely or
jointly owned, giving the value, location and details of all such assets.
(2) If the provision of any of this information is likely to incriminate the
Respondent, he may be entitled to refuse to provide it, but is recommended
to take legal advice before refusing to provide the information. Wrongful
refusal to provide the information is contempt of court and may render the
Respondent liable to be imprisoned, fined or have his assets seized.

10. Within 2 working days after being served with this Order, the Respondent must
swear and serve on the Applicant’s solicitors an affidavit setting out the above
information.
11. (1) This Order does not prohibit the Respondent from spending £400 a week
towards his ordinary living expenses and also £2,000 on legal advice and
representation. But before spending any money the Respondent must tell
the Applicant’s legal representatives where the money is to come from.
(2) This Order does not prohibit the Respondent from dealing with or disposing
of any of his assets in the ordinary and proper course of business.
(3) The Respondent may agree with the Applicant’s legal representatives that
the above spending limits should be increased or that this Order should be
varied in any other respect, but any agreement must be in writing.
(4) The Order will cease to have effect if the Respondent –
(a) provides security by paying the sum of £85,000 into court, to be held
to the Order of the court; or
(b) makes provision for security in that sum by another method agreed
with the Applicant’s legal representatives.
12. The costs of this application are reserved to the judge hearing the application on
the return date.
13. Anyone served with or notified of this Order may apply to the court at any time to
vary or discharge this Order (or so much of it as affects that person), but they
must first inform the Applicant’s solicitors. If any evidence is to be relied upon in
support of the application, the substance of it must be communicated in writing to
the Applicant’s solicitors in advance.
14. A Respondent who is an individual who is ordered not to do something must not
do it himself or in any other way. He must not do it through others acting on his
behalf or on his instructions or with his encouragement.
15. A Respondent which is not an individual which is ordered not to do something

must not do it itself or by its directors, officers, partners, employees or agents or
in any other way.
16. Effect of this Order
It is a contempt of court for any person notified of this order knowingly to assist in
or permit a breach of this order. Any person doing so may be imprisoned, fined or
have their assets seized.
17. Set off by banks
This injunction does not prevent any bank from exercising any right of set off it
may have in respect of any facility which it gave to the Respondent before it was
notified of this Order.

18. Withdrawals by the Respondent
No bank need enquire as to the application or proposed application of any money

withdrawn by the Respondent if the withdrawal appears to be permitted by this
Order.
COMMUNICATIONS WITH THE COURT
All communications to the court about this Order should be sent, where the Order is
made in the Chancery Division, to Chancery Associates, Ground Floor, The Rolls
Building, 7 Rolls Building, Fetter Lane, London EC4A 1NL, quoting the case number.
The telephone number is 020 7947 6733.
The offices are open between 10 a.m. and 4.30 p.m. Monday to Friday.
SCHEDULE A
AFFIDAVITS
The Applicant relies on the following affidavits
Name Number Date Sworn Filed on behalf of
(1) Elaine Bridge First Draft Applicant

(2) Hugh Green First Draft Applicant
SCHEDULE B
UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT
1. If the court later finds that this Order has caused loss to the Respondent, and
decides that the Respondent should be compensated for that loss, the Applicant
will comply with any Order the court may make.
2. The Applicant will –
(a) on or before 11 October 20xx cause a written guarantee in the sum of

£ 18,000 to be issued from a bank with a place of business within England
or Wales, in respect of any Order the court may make pursuant to
paragraph (1) above; and
(b) immediately upon issue of the guarantee, cause a copy of it to be served

on the Respondent.
3. As soon as practicable the Applicant will issue and serve a claim form in the form
of the draft produced to the court.
4. The Applicant will cause an affidavit to be sworn and filed substantially in the
terms of the draft affidavit produced to the court.

5. The Applicant will serve upon the Respondent as soon as practicable –
(i) copies of the affidavits and exhibits containing the evidence relied upon by
the Applicant, and any other documents provided to the court on the
making of the application;
(ii) the claim form; and
(iii) an application notice for continuation of the Order.
6. Anyone notified of this Order will be given a copy of it by the Applicant's legal
representatives.
7. The Applicant will pay the reasonable costs of anyone other than the Respondent
which have been incurred as a result of this Order including the costs of finding
out whether that person holds any of the Respondent's assets and if the court
later finds that this Order has caused such person loss, and decides that such
person should be compensated for that loss, the Applicant will comply with any
Order the court may make.
8. If this Order ceases to have effect (for example, if the Respondent provides
security or the Applicant does not provide a bank guarantee as provided for
above) the Applicant will immediately take all reasonable steps to inform in
writing anyone to whom he has given notice of this Order, or who he has
reasonable grounds for supposing may act upon this Order, that it has ceased to
have effect.
9. The Applicant will not without the permission of the court use any information
obtained as a result of this Order for the purpose of any civil or criminal
proceedings, either in England and Wales or in any other jurisdiction, other than
this claim.
10. The Applicant will not without the permission of the court seek to enforce this
Order in any country outside England and Wales or seek an Order of a similar
nature including Orders conferring a charge or other security against the
Respondent or the Respondent's assets.
NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES
The Applicant’s legal representatives are –
Hill & Partners

43, Bishopsgate,
London EC3A 1PQ
Ref HG/427/12
Fax 020 7123 0000 (24 hours)
Tel 020 7123 0001 (24 hours)
E-mail hg@hillandco.com

PLEASE
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LPC: CIVIL LITIGATION CHAPTER 8 PART 4

4.1 What is an injunction?

An injunction is an order of the court requiring a party to do or to refrain from

While an injunction can be obtained at trial, if the harm to the applicant is

4.2 Types of injunction

A perpetual injunction is a final injunction (usually made at trial) that

An interim injunction is a provisional injunction, usually made in

In this chapter, we will focus on interim injunctions.

4.2.2 Injunctions can further be categorised as follows:

A mandatory injunction requires the other side to do a specific act.

A prohibitory injunction requires the other side to refrain from doing an

LAW SCHOOL 01/06/2022 01:04:00 PM/CK Page 1 of 31

3. Quia timet injunctions

In this module we will focus on interim prohibitory injunctions and

It is also possible to obtain an injunction against all public bodies including

Applications for injunctions must generally be made to a Judge, rather than to

4.4 Interim Injunctions

An injunction is both an equitable and a discretionary remedy.

4.4.2 Need for a cause of action

An injunction is not a cause of action in itself - it is only a remedy. In other

Page 2 of 31 01/06/2022 01:04:00 PM/CK LAW SCHOOL

4.4.3 Damages must be an inadequate remedy

The court will not award an injunction where damages would be an

Damages will be inappropriate if:

1. The harm is serious and likely to continue.

2. The harm is irreparable.

3. The harm is difficult to assess or cannot be quantified in financial

4. The respondent has no means of paying damages.

4.5 The court’s approach to interim injunctions

As explained above, injunctions are discretionary remedies. The court’s

4.5.2 Interim mandatory injunction

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4.6 Interim prohibitory Injunctions

As mentioned above, before applying the steps of the American Cyanamid

Lord Diplock stated his guidelines in a threefold ‘test’, as follows:-

1. Is there a serious question to be tried?

2. Would damages be an adequate remedy for a party injured by the court’s

3. If not, where does the “balance of convenience” lie?

These guidelines are considered in more detail below.

Is there a serious question to be tried?

Before American Cyanamid, the courts would only grant an interim

In American Cyanamid, Lord Diplock pointed out that it was generally

Page 4 of 31 01/06/2022 01:04:00 PM/CK LAW SCHOOL

Would damages be an adequate remedy for a party injured by the court’s

If there is a serious question to be tried, the court will go on to consider

Step 2(A) – Damages for the applicant

If damages would be an adequate remedy for the applicant (and if the

Step 2(B) – Damages for the respondent

LAW SCHOOL 01/06/2022 01:04:00 PM/CK Page 5 of 31

If damages from the applicant’s undertaking would be an adequate remedy to

Where does the “balance of convenience” lie?

The courts seek, as far as possible, to resolve injunctions by finding an

There may be a hint in Lord Diplock’s comment on the balance of convenience

Page 6 of 31 01/06/2022 01:04:00 PM/CK LAW SCHOOL

As mentioned above, the distinction between step 2 and step 3 of American

Ultimately: Will one party be disproportionately harmed if the injunction is or is

Beyond the ‘balance of convenience’

The ‘status quo’

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The merits of the case

Other special factors

There are, however, various categories of cases where the American

4.6.3 American Cyanamid in practice