UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
• that damages would be inadequate to remedy its losses; and • that the balance of convenience favours ordering the injunction. Where an interim injunction is sought, a claimant must give a cross-undertaking in damages to cover any loss suffered by the defendant if the former were to lose the substantive case which follows. The High Court can also award security for costs. The timing of an application is a critical issue. In AAH Pharmaceuticals v Pfizer Limited & Unichem Limited [2007] EWHC 565 (Ch), the last-minute nature of the application and the complexity of the analysis required to establish whether Pfizer’s actions were anti-com - petitive caused the Court to refuse the wholesalers’ application. Although injunction applications may be made without notice, this is only in exceptional cir - cumstances which must be justified to the court. In such an ex parte application (ie, made on a without- notice basis), the applicant bears the burden of full and frank disclosure to the court and, in the absence of the respondent party, must not withhold evidence which is adverse to its case. CAT The CRA 2015 introduced powers under which the CAT may grant injunctions in individual claims or col - lective proceedings. An injunction granted by the CAT has the same effect as an injunction granted by the High Court, and the CAT must apply the same prin - ciples as outlined above. Failure to comply with an injunction allows the CAT to certify the matter to the High Court, which may deal with that person as if they were in contempt. An application for an interim injunc - tion can be made without notice if it appears to the CAT that there are good reasons for not giving notice which must be stated as part of the evidence in sup - port of the application. 10.2 Alternative Dispute Resolution Alternative dispute resolution (ADR) is available and encouraged by the courts in England and Wales, but is not mandatory. Antitrust disputes are arbitrable if the claim alleging an antitrust infringement falls within the ambit of an arbitration clause. The courts have held that antitrust claims are arbitrable. In Microsoft
Mobile v Sony [2017] EWHC 374 (Ch), the High Court considered the application of an arbitration clause in a tortious claim arising from allegations of anti-com - petitive conduct and determined that the claim could be stayed under Section 9 of the Arbitration Act 1996. This approach was confirmed in Gazprom Export LLC v DDI Holdings Ltd [2020] EWHC 303 (Comm).
11. Funding and Costs 11.1 Litigation Funding Damages-Based Agreements (DBAs)
DBAs are available, under which lawyers can agree to accept a share of the clients’ winnings, capped at 50%. DBAs must be on a no win, no fee basis. DBAs are not available in opt-out collective proceedings (as confirmed in Paccar Inc and Ors v Road Haulage Association Limited and UK Claims Limited [2023] UKSC 28). Litigation Funding Agreements (LFAs) Following the Supreme Court’s judgment on 26 July 2023 in Paccar Inc and Ors v Road Haulage Associa- tion Limited and UK Claims Limited [2023] UKSC 28, LFAs, in which the funder’s return is a share of dam - ages ultimately awarded to the claimant, are now also categorised as DBAs and are therefore not enforce - able if they do not meet the requirements set out in the applicable regulations, such as capping the share of winnings at 50% and being on a no win, no fee basis. LFAs have now been updated to work around this ruling, with provisions such as recovering a multiple of the funds committed being applied. In March 2024, the UK government announced the Litigation Fund - ing Agreements (Enforceability) Bill, which sought to reverse the decision of the judgment on third-party liti - gation funding ( R (on the application of PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28). While this bill was ultimately not passed prior to the 2024 General Election, the Civil Justice Council 2025 review has advised that this decision should be reversed, and so we await to see if legislative reform will be intro - duced to address this. Conditional Fee Arrangements (CFAs) CFAs, in which lawyers act on a “no win, no fee” basis, with provision for a “success fee” uplift in the event
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