Civil Injunctions – A quick guide to dealing with injunctions

What is an injunction

Civil injunctions come in many different forms. The main purpose of the injunction is to stop a person from carrying out a specific act.

Some common injunctions that we see include:

1. Preventing anti-social behaviour.

2. Stopping the disclosure of private information or documents.

3. Stopping a nuisance of trespass from a person.

4. Preventing an anticipated breach of contract or duty (such as a former employee soliciting their ex-employer’s clients).

5. Protecting property or freezing assets.

   
   

An injunction will be for a fixed period of time (i.e. it will not be indefinite) and should not be used if a claim for money would be an adequate alternative remedy.

Injunctions obtained without the person’s knowledge

Usually, an injunction application is made ‘on notice’ which means that all parties will have the ability to submit evidence and argue their points in Court, before a decision is made.

However, the Court may allow a Claimant to obtain an injunction before the Defendant has knowledge of the court proceedings. This is known as a ‘without notice’ application and is usually done where there is a degree of urgency, where secrecy may be arguable required, or there is a need to protect an individual or interest.

If an injunction is made on a without notice basis, the Court will list the matter for a further court hearing, where it will then determine if the injunction should have been granted in the first place and whether it should continue. During this time, the Defendant continues to be bound by the injunction’s terms.   

If a Claimant wishes to make a without notice application, they have a duty to the Court to give full and frank disclosure. They must disclose all facts that are material to the court’s decision, including any arguments against the application.

What must an injunction prove to succeed

Injunctions are considered on a civil burden of proof. This is very different to criminal courts where a successful prosecution requires the prosecutor to show that it is beyond reasonable doubt that Defendant has engaged in criminal behaviour.

For a civil injunction, a Claimant will need to show that it is ‘just and convenient’ for the Court to grant the injunction. This involves the Court carrying out a balancing act, considering matters such as the needs of the Claimant and the potential harm to the Defendant.

What happens if an injunction is breached

An injunction contains an order from the court to do or not do something. Breaching that order is considered contempt of court, punishable by imprisonment and/or a fine.

The usual rule is that a losing party pays the winning party’s reasonable costs. The Court has a wide discretion when deciding who should pay what legal costs and if an injunction is unsuccessfully opposed, the court will likely order the Defendant to pay the Claimant’s costs of the injunction.  

Certain injunctions can attach what is known as a ‘Power of Arrest’. This is can be attached to injunctions which relate to a complaints relating to the use of or threat of violence towards a person or property.

Faced with an injunction? - How we can help

Injunctions can be fast paced and carry serious consequences. The above brief guide is designed to help you understand what is involved in an injunction.

If you are faced with an injunction, we can advise you on the specific circumstances and give advice tailored to your needs. Some of the ways which we can help include:

1.       Oppose the injunction

If there are grounds to oppose the injunction, we can arrange representation for you to attend any hearings on your behalf. We can put in evidence

2.       Negotiate an outcome

If there is a serious risk that the injunction will be granted against you, we can seek to negotiate an outcome that minimises the consequences of the injunction and seeks to reduce your risk of paying the Claimant’s legal costs of the injunction.

3.       Discharge of vary injunction

If an injunction has already been granted, we can consider whether you are able to vary or discharge the injunction.

We assist both Claimants and Defendants in bringing and defending civil injunctions. Contact us for a free no-obligation consultation to see if we can help.