Protecting Property Rights Using Injunctions

There are many circumstances where you might investigate the possibility of an injunction in a property dispute. An injunction can be your ultimate legal remedy. It is a court order which either.

• Requires a party to do something they are legally obliged to do.
• Prevents a party from doing something they should not be doing.

Breach of an injunction can amount to a contempt of court, which is punishable by a fine or imprisonment.

It is possible to seek final injunctions, or in urgent cases it may be necessary for a party to also seek a temporary remedy in the form of an interim injunction.

Interim Injunctions and cross undertakings

An interim injunction can be essential in circumstances where a party wishes to preserve the status quo. An interim injunction is often sought where the other party, if unrestrained, might cause irreparable or immeasurable damage by continuing the conduct complained of. Interim injunctions continue until the court decides whether to grant a final injunction.

In general terms, when exercising its discretion as to whether or not to grant an interim injunction, the court will need to be persuaded that there is a good reason why the respondent's rights should be restricted before the court knows whether the applicant will succeed at trial. The applicant does not have to prove its underlying claim at the injunction hearing, but it must show that it has a good arguable case. The court will not pre-judge the merits but must be persuaded that there is a serious question to be considered. If this is established, then the court has the discretion to grant the injunction on a final basis. In doing so the court has to balance the competing interests of the parties in either allowing or preventing activity before a final trial of the substantive issue.

An interim injunction is significant restriction on a party’s rights. They are by definition ordered before the merits of the parties' cases have been fully considered at trial, and the court will be concerned that if an interim injunction is granted, it is possible that the court will find against the claimant and discharge the injunction..

As a result of the risk of this injustice, the court is very strict about the terms upon which injunctions are granted. An applicant will have to undertake to the court to compensate the other party for any loss caused by the injunction being wrongly granted. This 'cross-undertaking as to damages' can be enforced against the applicant if it is later shown that the injunction should not have been granted. As such losses might be very significant, this is always an important issue for a potential applicant to consider before making an application.

Procedure

An application for an injunction is usually made by giving the other party notice of the application, however, it can be without notice if there is a real emergency or need.  All applications for injunctions must be supported by evidence, a witness statement, setting out the facts relied on and attaching all relevant documents.  

How the Court decides

In the leading case of Coventry v Lawrence (2014), the Supreme Court confirmed that when deciding whether or not to grant an injunction a court should weigh up competing factors to assess whether an injunction is appropriate.

This is known as the 'balance of convenience'. The court will weigh the likely inconvenience or damage which would be suffered by the applicant if the injunction is not granted against the likely inconvenience or cost for the respondent if it is.

One of the factors is whether damages is adequate compensation, instead of an injunction.  If the applicant's inconvenience in failing to obtain the injunction could be adequately compensated by damages after the trial, then the court will be more likely to refuse the injunction.

Any delay in making an application will reduce the likelihood of obtaining an injunction. The longer the applicant has managed without an injunction, the less likely the court is to be convinced of the need for one. An injunction is unlikely to be granted if there is any delay which cannot be satisfactorily explained.

If you think you need an injunction as a remedy to preserve or protect your rights, then it is imperative that you take prompt action and obtain legal advice at an early stage. Significant delay is likely to be a factor that a Judge considers when deciding whether or not an injunction is the appropriate remedy.