An injunction is a judicial remedy, obtained from the court, which requires a party to specifically do, or refrain from doing something. Injunctions are commonly used in civil law to protect intellectual property from wrongful exploitation (such as copyright, trademarks, patents or trade secrets). They are also used in harassment, domestic violence and other potential criminal cases to prevent a person from contacting or approaching another (a restraining order).
In the UK, there are some injunctions whose details and very existence may not be legally reported, breach of which would put the reporter in contempt of court. These have been dubbed by the press as “super-injunctions”. A good recent example is the case of CTB v News Group Newspapers, in which a well known married Premier League footballer successfully applied for an injunction to stop the publication of his name in a national newspaper, which alleged he had an affair with a reality show contestant (his name was later revealed on the social media site Twitter, in breach of the injunction).
Interim injunctions are often used and applied for at the beginning of a case, so that the act being restrained cannot continue until the full facts of the case are heard and are decided on by the court. In order to obtain an interim injunction, the party asking for it must be able to show that damages would not be an adequate remedy if the behaviour continues. If damages can compensate the claimant, it is unlikely that the injunction would be granted.
The main principles on injunctions were established in the American Cyanamid Co. v Ethicon Ltd case in 1975, and have been used as guiding precedent by the UK courts ever since. As well as the damages issue, a claimant must show that there is a “serious issue” to be tried, and the court will consider where the “balance of convenience” lies by weighing the needs (and potential impact) on each party if the interim injunction is not granted.
For example, if the publication of a book is in question, which the government claims is in breach of the Official Secrets Act, the court will weigh up the damage that may be caused to the publisher and author as a result of non-publication, against the damage to the Government if it is published.
In deciding whether to grant the injunction, the court will also consider whether the defendant has the financial means to pay the claimant if the claimant succeeds in getting a full injunction, and also whether the claimant is able to compensate the defendant if it fails (a “cross-undertaking” in damages).
When assessing whether there is a serious issue to be tried, the court will be looking to see if there is an arguable legal case, rather than undertaking a full assessment of the quality and depth of a parties case. The idea is to cut our frivolous and vexatious applications, rather than to try and “try” the case before full legal proceedings are commenced.
An injunction, by definition and nature, is an urgent action which must be undertaken swiftly to preserve a position or protect against loss or injury. In the legal world, urgency usually translates to much increased cost. As such, they are very expensive to obtain, especially as the outlay is unlikely to recovered in full, even if the claimant is successful at full trial. It’s for this reason that injunctions are rarely sought unless there is a large amount of money at stake (such as an infringement of a pharmaceutical patent) or there is a point of principle or reputation to defend or preserve (such as with defamation).