An injunction is an order by the court for a party to either do, or refrain from doing, a particular act or thing. This does not include orders made by the court for a party to make a payment for damages, but instead includes things such as:
- transferring a property into somebody else’s name;
- not going near a certain person or space;
- freezing orders – preventing someone from selling certain property; and
- not making publications, such as Facebook posts, about someone.
Types of injunctions available
There are several types of injunctions available, each of the individual injunctions has its own requirements and elements to prove.
An “interlocutory injunction” (also known as a “perpetual injunction”) is a temporary order which is usually framed to continue to be in force until the trial or until further notice, and is generally sought in urgent circumstances to protect an immediate right until the court has time to hear the dispute at trial.
Interlocutory injunctions may be sought in several types of cases including contractual, property and tortious disputes, and when the government moves to exercise its constitutional powers and will not be granted unless the following elements are established:
- the plaintiff has made out a “prima facie” (meaning “on face value” or “on first impression”) case, or established that there is a serious question to be tried;
- the balance of convenience favours the granting of the injunction;
- the plaintiff provides an undertaking as to damages; and
- the court decides to exercise its discretion in awarding an injunction.
- The plaintiff has made out a “prima facie” or a “serious question” to be tried
A prohibitory injunction is an order made by the court forcing a party to refrain from doing a particular act or thing. These type of injunctions are most commonly sought on an interlocutory basis as they prevent further damage occurring. The most common examples being breach of contract.
When applied a prohibitory injunction may most commonly be obtained to prevent:
- the sale of a product;
- the sale of property;
- a breach of restrictive covenant;
- the service of things;
- a former employee for working with a competitor;
- the use of a publication; and
- the use of confidential information e.g. trade secrets.
An injunction may be granted to restore the situation which would have prevailed but for the defendant’s breach of contract. For example, reinstating a tenant to their leased property when they have been wrongfully evicted by a landlord. Similar examples include where one party to a contract is refusing to comply with their obligations. A mandatory injunction can be sought which orders them to do a certain thing, e.g., sign documents necessary for the transfer of land.
It is important to note that a mandatory injunction is not as readily granted as a prohibitory injunction. The court is more inclined to order someone not to do something than to impose a positive obligation on them. However, the court will intervene in this way in situations where it is shown that either:
- the defendant has deliberately disregarded the claimant’s rights; or
- the claimant would be extremely prejudiced if the remedy was withheld from them.
Ex parte injunction
An “ex parte” court proceeding is brought by an applicant in the absence of the respondent. This type of injunction is granted against a defendant who has not been served and is most commonly used in situations of great urgency and generally only lasts for a restricted period of time.
The modern practice in most cases where service of court documents has not been possible is to adjourn, or postpone, the hearing of the application until the respondent has been properly served.
This duty imposes a high standard of candour and responsibility upon the applicant apply for the ex parte injunction. It extends beyond ensuring appropriate disclosure of facts favouring refusal of the injunction to all other relevant factors this includes applicant’s omission, defects in the evidentiary basis of the applicant’s case and material legal issues.
It is worth mentioning that an ex parte injunction is commonly awarded in conjunction with a freezing order (a legal mechanism used to prevent a party from removing, hiding or selling certain assets) and search orders such as an Anton Pillar Order (a legal mechanisms that requires the defendant to permit the plaintiff and or his or her legal representative to enter the defendant’s premises in order to obtain evidence essential to the plaintiff’s case).
Have you ever experienced an injunction? Tell us more about it in the comments below.