If there are people on your land who are not legally entitled to be there and are causing you or your company difficulties or disruption, there are remedies that can be sought from the court. One of the most effective immediate remedies is to obtain an interdict (if in Scotland) or an injunction (if in England) which is a court order prohibiting or preventing someone from carrying out an unlawful act. Part of that process allows you to seek an interim interdict/injunction at an early stage to make sure they do not enter or are kept off the land until the full order is heard by the court. Below are some do’s and don’ts to keep in mind.
To prevent an anticipated wrong:
1. Is there a strong probability that the anticipated defendant would act in breach of the claimant’s rights unless restrained and do you have evidence to support this?
2. Would the harm caused by such a breach be so grave that damages would be an inadequate remedy – for example are there health and safety concerns as a result of the activity (i.e. risk of falling where Urban Explorers are involved)?
To prevent an ongoing wrong:
1. Does the claimant have a legal right that it can enforce against the alleged wrongdoer?
2. Is there an ongoing wrong that infringes that right that cannot be compensated adequately in damages?
For an interim interdict/injunction:
1. Is there an obvious case/a serious issue to be tried?
2. Should the order be granted on the balance of convenience – i.e. who is likely to suffer the greatest harm by the ongoing action/activity on the land?
— Make sure you have taken all reasonable and proper, practical steps to protect your property as this may be important in showing why the court order is required.
— Consider precisely and with great detail exactly what you are asking the Court to protect against and whether you can evidence that the relevant test will be met.
— Identify the persons you are seeking an order against clearly. If you do not know the identity of any individuals, be sure to describe them as clearly as possible ideally by reference to the anticipated action but use simple non-legal terms.
— It can be more difficult to obtain orders against persons unknown, particularly in England, but making sure their identity is as clear as possible will help. For example, consider whether you can describe people in categories of action, and in a way that is not so wide that it could include people who have not carried out any wrong doing.
— Make sure your description of the order you are asking the court to grant is in simple and clear terms so that people who may not have a legal background will understand. The order sought should not be too wide in scope.
— Include geographical and time limits which are appropriate and proportionate to the problem.
— Take photographs or videos when serving the court papers, particularly if the persons you are seeking the order against are unknown as this will help identified the defender to the action and assist the court when deciding whether to grant the full order.
— Prepare any evidence you have to assist the court in granting the order. This will often be a witness statement but can also include other evidence such as evidence of the persons carrying out the same unlawful act at other premises and information obtained from monitoring social and other media.
— Make sure you update the Court if you obtain an order and then become aware of any material changes in the factual circumstances or law that might affect the position.
— Don’t forget to comply strictly with the rules on serving any order you might get – these rules are different in Scotland and England – failure to do so may have significant consequences.
— In Scotland, service can be done in person, by recorded delivery mail or by Sheriff Officers/messengers-at-arms. If you need to serve the papers by any other means, you will need to seek permission from the court.
— In England, there is scope to obtain alternative service which is usually more appropriate in these circumstances and an application should be made along with the claim form.
— Overlook serving the full claims papers on the persons as well as any interim interdict/injunction you might get - failure to do so is likely to mean you can’t get the full order you seek against them.
— Ignore other potential remedies e.g. would damages make up for the wrongdoing? If so, the court will be reluctant to grant an interdict/injunction.
— Don’t forget that you may be required to disclose documentation to the defender and other parties. If you are seeking an injunction or interim injunction order on a “without notice” basis in particular, you will be expected to make “full and frank” disclosure which may mean providing information or documentation that you would not want others to be aware of.