ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Christy Conlon and Nathan Barrow, Slaughter and May
There are various types of injunctions, including: • freezing injunctions (restricting dealings with assets); • search orders (permitting a search of property); • anti-suit injunctions (restraining foreign legal pro- ceedings); and • proprietary injunctions (protecting property and trust assets). Injunctions are granted at the court’s discretion where it is “just and convenient” to do so. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Injunctive relief can be obtained relatively quickly, especially in urgent circumstances where a litigant believes that immediate action is necessary to pre- vent irreparable harm. The High Court has a system of out-of-hours judges who are available to consider urgent applications when the court is not in session; this typically includes evenings, weekends and pub- lic holidays. Applicants typically contact the duty judge (usually via their clerk) by telephone in the first instance to alert the court to the urgency of the matter, after which the application and supporting materials are submitted in writing. The judge will then review the application and make a decision, often very quickly – sometimes within hours. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Injunctive relief can be granted on an ex parte basis (ie, without notice to the respondent) in very limited circumstances – eg, in urgent situations where notify- ing the other party may risk causing irreparable harm or undermining the purpose of the injunction. This might apply in relation to an application to freeze an asset that is on the verge of being removed from the jurisdiction. A party applying for injunctive relief on an ex parte basis must meet certain criteria, such as providing full and frank disclosure to the court (that is, a duty to disclose all material facts, both favourable and unfa- vourable to its application). Failure to do so may result in the injunction being discharged and the applicant being ordered to pay costs, even if the injunction
might otherwise have been justified. Orders made on an ex parte basis typically have a short lifespan, as the court will promptly schedule a subsequent hearing to allow both parties to present their arguments. 6.4 Liability for Damages for the Applicant An applicant may be held liable for damage suffered by the respondent if the respondent successfully dis- charges the injunction, regardless of whether it was obtained after notice to the other party or on an ex parte basis. Subject to some limited exceptions, the court will require an undertaking in damages when it grants an interim injunction. The purpose of the undertak- ing is to provide a safeguard for the respondent who may be unjustifiably prevented from doing something they were entitled to do. An applicant may sometimes be required to “fortify the undertaking”, including by providing security or by requiring another person to honour the undertaking. 6.5 Respondent’s Worldwide Assets and Injunctive Relief In some limited circumstances, injunctive relief, such as freezing orders, can be granted against the world- wide assets of the respondent. These orders aim to prevent the respondent from dissipating their assets. However, the enforcement of such orders outside England and Wales will depend on the domestic laws of the jurisdiction where the assets subject to the injunction are located. 6.6 Third Parties and Injunctive Relief Injunctive relief may be obtained against third parties in certain circumstances, provided that those parties are subject to the jurisdiction of the court. By way of example, freezing orders may be made against a third party that controls assets on behalf of a person who is the subject of a freezing order. 6.7 Consequences of a Respondent’s Non- Compliance Breach of the terms of an injunction can lead to a party being held in contempt of court, which can lead to fines, confiscation of assets and imprisonment.
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