What is an interim injunction?
An injunction is an order made by the court that requires a party to do (or stop doing) something. If an injunction is breached then the consequences can be extremely serious, resulting in a fine, or even imprisonment.
- "Final" - i.e. made by the court at the end of a trial; or
- "Interim" - i.e. made on an urgent, temporary basis part way through proceedings (or even before proceedings have been issued), pending a final hearing.
When can they be useful?
As it will often take many months to issue proceedings and get to a trial, interim injunctions can be useful in extremely time-critical situations - for example where your charity's assets or beneficiaries are at serious risk of immediate harm where waiting until the end of a trial for a final injunction and / or damages would simply be too late.
The court has a wide jurisdiction to grant interim injunctions in a variety of circumstances. Common examples include:
- freezing orders to restrict dealings with assets (usually to prevent them from being dissipated);
- injunctions to prevent trespass to your property; and
- orders requiring a party to "deliver up" (i.e. hand over) property.
How do you apply for an interim injunction?
Firstly: don't delay. If you do think you need to apply for an injunction, then you need to act quickly. One of the factors the court may consider is how long the matter complained of has existed. If you have not acted promptly in making an application for an interim injunction, then the court may refuse to grant one.
Because an interim injunction will involve asking the court to make a decision before a full trial, and because the potential consequences of failing to comply with an injunction are so serious, the court will only grant them in very strict circumstances.
What about your regulatory obligations?
Whose interest is it anyway?
In deciding whether or not to apply for an injunction, you must consider whether it is in the best interests of the charity to do so. This seems obvious, but can sometimes be quite difficult in practice.
Other issues for you to consider
What is your cause of action?
An interim injunction is a remedy rather than a cause of action which means that, in order to obtain one, you must have an underlying claim. In our example of a celebrity obtaining an interim injunction against a newspaper, their underlying claim against the paper would usually be for misuse of private information. In recent months, we have advised a number of charities which had obtained an interim injunction months or years previously but had not yet clarified the nature of the underlying claim. Before applying for an injunction, you must be certain that you have a viable legal cause of action against your opponent. If you do not, you will fail in the application, likely to be ordered to pay your opponents costs as well as potentially reducing any leverage in the dispute and damaging reputation (see below).
Are you prepared to see it through?
An interim injunction is by definition a temporary remedy, which is only in force pending a final hearing. If you are applying for an interim injunction before proceedings have been issued you will either need to issue your claim against your opponent at the same time as making your application (which again involves further time and costs), or give an undertaking to the court that you will do so within a set timeframe. You will then need to proceed with your claim - through to a trial if necessary - in the usual way. Obtaining an interim injunction without giving sufficient thought to the underlying claim and your strategy for pursuing it can be an expensive mistake leaving the charity embroiled in costly and complex legal proceedings without a clear exit route. An interim injunction can be subsequently discharged by the court if it considers you have seriously delayed pursuing your claim, so you must be prepared to continue with your claim if an interim injunction is granted.
Impact on reputation
As with any court litigation, applications for injunctions are generally a matter of public record once filed at court. Any hearings at court on the injunction will also usually be held in public. An interim injunction is often seen as a "nuclear" option so be aware of how this may be perceived publicly and think about whether any stakeholders or regulators (such as the Charity Commission) should be given advance warning about your intentions.
Need some guidance?
Injunctions can be a useful tool for charities looking to protect their beneficiaries, assets or reputation. However they can also be time consuming and extremely expensive. It is important that charities comply with their governance and regulatory obligations when deciding whether to seek an injunction, and that they seek specialist advice as appropriate.
Shivaji Shiva and Ben Holt partners at charity law specialists VWV.
This article has been supplied by a commercial partner