Injunctions - Should You Give Notice?

An injunction is an equitable remedy in the form of a Court order which either;

1. Prohibits a person from taking a particular action (a “Prohibitory Injunction”); or
2. Requires a person to take a particular action (a “Mandatory Injunction”).

Injunctions are a useful tool for both individuals and businesses and can be obtained in a variety of situations; for example, to resolve shareholder disputes, order the sale of property or to prevent domestic abuse.

In order to demonstrate you are entitled to an injunction, you must show the Court that you are likely to suffer irreparable harm without it. The Court will then balance the need for the injunction against the rights of the other party when considering whether to make the injunction.

When applying for an injunction, you must first submit an application to the Court. The procedure you follow depends on whether you make your application with or without notice. Generally, the Court requires an applicant to give the other party notice.

If you are making an application with notice, you inform the other party that the application for an injunction is being made and they are given the opportunity to oppose the application at a hearing. This notice period gives the parties a chance to resolve the situation themselves, without the Court’s involvement, saving time and costs.

However, a notice period is not appropriate in situations where the injunction is required as an emergency (i.e. where, without the injunction, there will be irreparable harm suffered by the applicant).  In these circumstances, an application for an injunction may be made without the other party having any notice of the application or subsequent hearing. Before making an application without notice, you must seriously consider whether it is appropriate to dispense with the notice period because the other party are not able to represent themselves before the Court.

When deciding whether your application is to be made with or without notice, you must give serious thought as to whether you require the injunction as an emergency, and whether secrecy is required to prevent you coming to irreparable harm. This is a matter to discuss with your solicitor.

Once an injunction is granted it is binding, meaning the parties must comply with it. If someone breaches an injunction order, they can be held in contempt of Court, which can have serious consequences and even lead to imprisonment.

Important things to remember if you are considering an injunction:

• Be quick – speed and urgency are crucial
• Get your evidence in order – you must be prepared to give the Court full disclosure
• Think about notice – should the other side be informed of your application?
• Once an injunction is made it is binding, and you must be prepared to act in accordance with the order

It is crucial an applicant understands that applying for or defending an injunction application is high risk and can involve significant costs, you must ensure you have an experienced solicitors on your side. At Bell Lax we have significant expertise in obtaining and resisting injunctions both with and without notice. For further advice or if you wish to apply for an injunction, please contact our commercial law team on 0121 355 0011.