1. Applicable Law
1.1 The Civil Procedure Rules
1.1.1 The two primary statutory sources of law governing court procedure in England and Wales are the Senior Courts Act 1981 and the County Courts Act 1984. The Senior Courts Act 1981 governs the High Court and the Court of Appeal (based in London). The County Courts Act 1984 governs the local county courts (of which there are approximately 220 in England and Wales). Both statutes are expressed in wide terms and leave the detailed procedures to be set out in separate rules that are made by a body known as the Civil Procedure Rule Committee.1 The Civil Procedure Rules(CPR) are the rules of civil procedure used by the English courts in civil cases.
1.1.2 The CPR commences with a statement of the CPR’s “overriding objective” which requires the court to deal with cases justly and at proportionate cost,2 both to aid in the application of specific provisions and to guide behaviour where no specific rule applies.3 In light of the “overriding objective”, courts will aim to deal with applications for interim measures in a way which is proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial situation of each party.4 CPR 25.1(1) lists some of the interim measures which the court, in the exercise of its discretion, may grant.
1.2 Common law
1.2.1 The court’s power to make interim orders is not limited to the remedies listed in CPR 25.1(1); the court has an inherent discretion, such that the expressions “interim measure” or “interim remedy” do not have a statutorily prescribed or restricted meaning. Accordingly, this chapter addresses the main interim measures listed in CPR 25.1(1), together with the remedies that have sprung from case law and/or statute, and the inherent jurisdiction of the court to grant an anti-suit injunction.
2.1 International and geographical jurisdiction – the venue
2.1.1 An application to the court for an interim measure can be made at any time, including before a claim has been commenced and after judgment has been entered. Generally, an application for an interim measure should be made in the court in which the substantive proceedings have been, or are likely to be issued, unless there is a good reason to make the application to a different court.
2.1.2 The courts have a general discretion to grant an injunction (whether interim or final) in all cases in which it appears to the court to be just and convenient to do so.
2.1.3 The court may grant an interim measure in support of court proceedings anywhere in the world.5 However, the courts of England and Wales will only exercise their discretion to order an interim measure in circumstances where it would be expedient to do so. The factors that the courts will take into account include whether it is the policy in the primary jurisdiction not to grant the relief sought; whether there is a danger that the order would cause confusion or a risk of conflicting or overlapping orders in other jurisdictions; whether there is likely to be a potential conflict over jurisdiction (such that it would be inappropriate to make a worldwide order); and whether the order could be enforced.6
2.2 The effect of jurisdiction clauses
2.2.1 If the parties have agreed that a court in an EU Member State has jurisdiction to settle a dispute, then the case on the merits must be brought before those courts.7 Article 35 of the Brussels I Regulation, however, provides that“Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.” As a result, if the provisional measures are executed in one Member State, the courts in that Member State might have jurisdiction, based on its own law, concerning the provisional measure sought, even if the courts of another Member State have jurisdiction on the merits pursuant to an exclusive jurisdiction clause.
2.3 Subject-matter jurisdiction
2.3.1 In general, cases with an estimated value of GBP 100,000 or less will be dealt with in the applicable county court,8 whilst the High Court in London will deal with more complex, higher-value cases. The High Court has the power to order an interim measure when it appears “just and convenient to do so” and may make such order unconditionally or on such terms and conditions as the court thinks just.9
2.3.2 A county court may make interim orders in certain circumstances.10 Section 38 of the County Courts Act 1984 confers a general power, subject to regulations, for a county court to make any order which could be made by the High Court as if the proceedings were in the High Court. However, county courts’ jurisdiction to grant search orders11 is expressly restricted.12 The granting of freezing injunctions had previously been restricted but this prohibition has since been lifted following the entry into force of the County Court Remedies Regulations 2014.13
3. Types of Interim Measures and their Criteria
3.1 Interim measures available under the CPR
3.1.1 CPR 25.1(1) provides for the following interim measures:
- interim injunctions;
- interim declarations;
- orders regarding detention, custody, preservation, inspection, sampling, sale of or payment regarding a property;
- orders authorising the entry into any land or building;
- orders to give up goods;
- freezing orders and orders directing that a party provide information about the location of any property or assets which are the subject of such freezing order;
- search orders;
- orders for disclosure of documents or inspection of property prior to a claim being made against either an actual or potential opposing party and/or against an entity which is not party to the proceedings;
- orders for interim payment on account of any damages, debt or other sum the court may hold the defendant liable to pay;
- orders regarding the payment of monies in to the court pending the outcome of proceedings;
- orders directing a party to file an account or directing an account/inquiry be made by the court; and
- orders regarding the enforcement of intellectual property proceedings.
More information on the main types of interim measures is set out below.
3.2 Interim injunctions14
3.2.1 An injunction is an order of the court that requires a party to: (i) refrain from doing a specific act or acts i.e. a prohibitory injunction; or (ii) do a specific act or acts i.e. a mandatory injunction.
3.2.2 A prohibitory injunction is usually sought where no actionable wrong has yet been committed or before any legal rights have been infringed (a quia timet injunction). Its purpose is to prevent the occurrence or repetition of an actionable wrong.15 This is the most common category of interim injunction. The applicant must show that there is a real risk that an actionable wrong will be committed. Usually this will be by evidence that the defendant has threatened to do the particular wrongful act. It can be used to prevent a claimant pursuing legal proceedings, or to restrain a breach of contract.16
3.2.3 A prohibitory injunction may be: (i) interim – a provisional measure taken at an early stage in the proceedings which remains in force until discharged by the court; or (ii) final – granted after the conclusion of proceedings to last perpetually or until a specified date.
3.2.4 A mandatory injunction requires the performance of a specific act. Courts are generally reluctant to grant mandatory injunctions as they are, by their nature, likely to be harsh and intrusive. As such they will usually only be granted at an interim stage and where there are special circumstances.17
3.2.5 Even where the court is unable to obtain any high degree of assurance that the applicant will establish its right in the main proceedings, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interim stage. Those circumstances will exist where the risk of injustice, if an injunction is refused, sufficiently outweighs the risk of injustice if it is granted.
3.2.6 The court needs to be satisfied that a mandatory injunction will be capable of enforcement.18 It is established law that a court will not grant an injunction requiring a respondent to: (i) perform services;19 (ii) do repairs;20 (iii) do an act which requires the continuous employment of people;21 or (iv) carry on a business,22 except in exceptional circumstances.23
3.2.7 The first step is for an applicant seeking an interim injunction to show that there is a “serious issue to be tried”.24The evidence must show that the applicant has a real prospect of succeeding in its claim for a permanent injunction at the final trial. Once the applicant has established this, the court should consider whether:25
- if the applicant were successful at a final trial, damages would be an adequate remedy. Damages may not be an adequate remedy for the applicant where there would be great difficulties involved in assessing them,26 if the refusal of an injunction would lead to the destruction of the applicant’s business,27 or where the respondent has no assets against which a judgment could be readily enforced; and
- if the respondent were successful at trial, damages under a cross-undertaking to pay damages by the applicant in return for an interim injunction would be an adequate remedy. If damages would be an adequate remedy, and the applicant would be in a financial position to meet the cross-undertaking, there would be no reason to refuse an interim injunction.
3.2.8 If there is any doubt as to the adequacy of the remedy of damages to either or both parties, the court must consider the “balance of convenience” and the individual facts of the case. In weighing up the various factors, the fundamental objective of the court is to take the course which ultimately involves the least risk of injustice, should the court’s decision to grant or refuse an injunction turn out to be wrong. Where the factors are evenly balanced, the courts have been inclined to preserve the status quo. If damages are shown to be an adequate remedy, an injunction will not normally be granted.
3.2.9 The court can refuse an application on discretionary grounds and as such, considerations such as delay, misconduct and wilful or other breach of contract may be relevant. The court can also consider matters of public policy or public interest,28 or the effect of the injunction on third parties.
3.2.10 It is generally accepted that the applicant should apply promptly for an interim injunction, and the court will consider delay as a discretionary matter when weighing the balance of convenience. Delay raises questions as to whether the applicant really needs an injunction pending trial, the quality of the applicant’s case and whether the delay has affected the respondent.
3.2.11 The court may also merely restrict the respondent’s activities in some way rather than prohibit them entirely.29However, an injunction must be capable of being framed with sufficient precision so as to enable the parties subject to it to fully understand what is prohibited and what is allowed.30
3.3 Freezing orders
3.3.1 The court may grant a freezing order:31 (i) restraining a party from removing assets located in the jurisdiction; or (ii) restraining a party from dealing with assets whether located within the jurisdiction or not.32 The order is designed to ensure that a respondent retains assets against which the applicant may enforce a judgment if the claim is ultimately successful.
Special application requirements
3.3.2 An application for a freezing order is made by filing an application notice in accordance with CPR Part 25, as modified by CPR Part 23. The applicant must put the claim form or a draft claim form before the court, together with an affidavit and draft order.
3.3.3 A freezing order takes effect at the moment it is made by the court, even though the order has not been drawn up or served on the respondent. In most cases, the freezing order will remain in force up to, and including, a specific date set by the court when the application shall come back to the court for further hearing. Notice must be given to the respondent and third parties in control of the assets, by telephone, fax or email, as soon as possible following the hearing, unless the judge has allowed later notification. A copy of the sealed order should be sent on later and the original must be served in accordance with the terms of the order.
3.3.4 In order to obtain a freezing order, the applicant must:33
- have a good arguable case as to the merits of the legal or equitable right of its substantive claims - “one which is more than barely capable of serious argument, but not necessarily one which the judge considers would have a better than 50% chance of success”;34
- show that there is a real risk that without an injunction the respondent may put its assets beyond the reach of the applicant with the consequence that a judgment or arbitral award in favour of the applicant would remain unsatisfied. The courts have recently emphasised the need for strong evidence of a “real risk” of dissipation of assets;35 and
- show that in all the circumstances of the case, it is just and convenient for the court to exercise its discretion in favour of the grant of the freezing order. In determining what is “just and convenient”, the court must consider whether the harm caused to the respondent and/or third parties outweighs the benefit that would be gained by the applicant. The court will take into account whether the applicant has conducted itself in a reasonable and conscionable way and without undue delay. The court should be satisfied before granting the relief that the likely effect of the injunction will be to promote the doing of justice overall, and that it will not be unfair or oppressive. This means taking into account the interests of both parties and the likely effects of such an order on the respondent.
3.3.5 In support of the request, the applicant should include in its affidavit the objective facts from which it may be inferred that the respondent is likely to move or dissipate its assets. Unsupported statements or mere expressions of fear have little weight.36 While each case will depend on its own facts, the following factors may be relevant:
- the nature of the assets which are to be the subject of the proposed freezing order, and the ease or difficulty with which they could be disposed of or dissipated. For instance, the applicant may find it easier to establish the risk of dissipation of funds in a bank account than of real estate;
- the nature and financial standing of the respondent’s business. For instance, the courts have noted the risks associated with dealing with companies incorporated in off-shore jurisdictions or tax havens;37
- the availability of any process for the reciprocal enforcement of English judgments or arbitral awards;
- the respondent’s behaviour in relation to the applicant’s claims or related claims. In particular, if there is evidence to support an allegation that the respondent has acted fraudulently or dishonestly, then it is often unnecessary for there to be any further specific evidence of the risk of dissipation; and
- the respondent’s past or existing credit record. A history of default may be a significant factor, particularly if the respondent company is the subsidiary of a foreign company which has allowed other subsidiaries to default on awards or judgments, or go into liquidation owing money to creditors. However, the risk of insolvency alone will not justify the granting of a freezing order.38
The scope of the order
3.3.6 In most cases, all of the respondent’s tangible and intangible assets are potentially within the scope of the freezing order, so long as they are in the legal or beneficial ownership of the respondent, and not subject to legal or equitable interests of third parties. Thus, the subject matter of the order may include land, vehicles and other chattels, bank accounts, ships and aircraft, and even goodwill.39 World-wide orders against assets outside the jurisdiction may also be granted, even where there is no substantive claim on the merits in the jurisdiction.
3.3.7 In many cases the order will require the respondent to provide information about its assets.40 Such information may be helpful to an applicant as it allows it to plan the recovery of any eventual judgment debt. In light of this, and for reasons of confidentiality, a respondent will often argue against the provision of detailed information, or offer an undertaking to the court to provide security in place of the order, on the condition that the asset list requirement is waived.
3.3.8 It should be noted that the purpose of a freezing order is to prevent a party from disposing of or dealing with its assets before judgment can be obtained and enforced. It does not provide the claimant with security for its claim.41
Variation to enable payments to be made
3.3.9 A respondent is prima facie entitled to pay normal debts arising in the course of business, and the standard form of a freezing order permits such payments.42 However, the respondent must show that it has no other funds from which the payments can be made; it cannot choose to reduce the frozen funds when it can meet its liabilities in other ways. Further, a freezing order granted against an individual respondent must always make suitable provision for the respondent to pay the ordinary living expenses of it and its family unless there is reason to believe that it has other assets to which the injunction does not apply and which would be available for that purpose.
3.4 Search orders43
3.4.1 A search order44 may be made ex parte (without notice to the respondent) designed to preserve evidence that may otherwise be removed, destroyed or concealed. The order requires permission to be given for certain representatives of the applicant to enter premises under the control of the respondent for the purpose of: (i) inspecting documents or other articles; or (ii) taking custody of documents or other articles pending trial of the action or in aid of execution.45
3.4.2 It is harsh and extreme relief because, when the respondent is served with a search order and following a short period of time allowed for it to take legal advice,46 the respondent becomes under an immediate obligation to comply with the order. Such compliance will involve the applicant’s representatives entering the respondent’s premises and searching it before the respondent has put its side of the case to the court and in circumstances capable of causing serious damage to the respondent’s reputation. Contempt proceedings may be brought against a person who disobeys a search order.47
Criteria for a search order
3.4.3 In order to obtain a search order:48
- there must be an “extremely strong prima facie case”;
- the “potential or actual” damage to the applicant’s interest must be “very serious”; and
- there must be “clear evidence” that the respondent has “incriminating documents or things” in its possession, and there is a “real possibility” that it may destroy such material before an application on notice can be made.
3.4.4 Further, the applicant must establish that the harm likely to be caused to the respondent is not excessive or disproportionate to the legitimate aim of the order.
Control by the court and supervisory solicitors
3.4.5 In light of the harsh nature of the relief, an applicant has special duties to the court (see further section 4.2) and is required to give undertakings as to how the order will be executed.
3.4.6 The search order must be served by a supervising solicitor, and carried out in the supervising solicitor’s presence and under his supervision.49 The supervising solicitor should be experienced, have some familiarity with the operation of search orders and not be a member or employee of the firm acting for the applicant. The supervising solicitor must advise the respondent of its right to legal advice, its right to vary or discharge the order and its potential entitlement to legal professional privilege or privilege against self-incrimination.50 The supervising solicitor must also provide a report to the applicant’s solicitors on the carrying out of the search order. As soon as the applicant’s solicitors receive the report, they must serve the report on the respondent and file a copy with the court.51
3.4.7 In addition, the respondent’s premises may not be searched and no items may be removed except in the presence of the respondent or a person who appears to be a responsible employee of the respondent.52
3.4.8 Failure to adhere to the requisite standards may result in criticism from the court, penal orders in relation to costs and possibly a disciplinary complaint.
3.5 Interim declarations
3.5.1 The court may grant a declaration as a final remedy at trial, including at the trial of a preliminary issue, and in interim proceedings.53
3.5.2 In most cases the court has used interim declarations to provide guidance to parties on the meaning or effect of a piece of legislation, or the lawfulness of a decision pending the final hearing of an application for judicial review.
3.5.3 In determining whether to make an interim declaration, the court should consider justice to the applicant, justice to the respondent, whether the declaration would serve a useful purpose 54 and whether there are any other special reasons why the court should or should not grant the declaration.55 If a result can be achieved by an application for summary judgment, an interim injunction or an early trial, the court will be very hesitant to issue an interim declaration. An interim declaration is not punishable by contempt if not adhered to.
3.6 Interim payment orders
3.6.1 The court may grant an interim measure in the form of an order:
- for payment by a respondent on account of any damages, debt or other sum which the court may hold the defendant liable to pay (interim payment);56
- for a specified fund to be paid into court or otherwise secured, where there is a dispute over a party’s right to the fund;57 or
- permitting a party seeking to recover personal property to pay money into court pending the outcome of the proceedings and directing that, if successful, the property is given to him.58
3.6.2 The jurisdiction to order an interim payment is subject to the strict restrictions set out in CPR 25.7.1, which provide that the court may only make an order for interim payment if:
- the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
- the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed; or
- it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom it is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim.
3.7 Orders in relation to relevant property
3.7.1 The court may grant a number of different orders relating to “relevant property” as an interim measure.59“Relevant property” means “property (including land) which is the subject of a claim or as to which any question may arise on a claim”.60 Such orders may include orders for the detention, preservation, inspection, sampling and sale of property.
3.8 Orders for disclosure
3.8.1 The court may grant an interim measure in the form of an order for disclosure of documents:
- before proceedings are commenced by “a person who appears to the court to be likely to be a party to the proceedings”;61 or
- after proceedings have commenced by a non-party.62
3.8.2 The court may also order a non-party to produce documents that are in its possession, custody or power to the applicant or others, such as the applicant’s legal advisers.
3.8.3 The applicant must show at least a prima facie case of entitlement to the substantive relief.63 In respect of non-parties, the court will only make an order where:
- the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
- disclosure is necessary in order to dispose fairly of the claim or to save costs.
3.8.4 The application notice should carefully describe the documents or classes of documents and the application should be limited only to the documents that are strictly necessary.64 Further, an applicant must show that it is more probable than not that the documents are within the scope of standard disclosure, should court proceedings commence.
3.9 Norwich Pharmacal jurisdiction
3.9.1 In addition to the interim measures outlined above, a separate “Norwich Pharmacal” jurisdiction has been developed in case law,65 which requires a respondent to disclose certain documents or information about the applicant.
3.9.2 The procedure is different from applications for pre-action and non-party disclosure (see section 3.8 above), which provide only for the disclosure of documents, and not information (which is available under the Norwich Pharmacal jurisdiction). A Norwich Pharmacal order can be obtained pre-action, during the course of an action, and post-judgment. A Norwich Pharmacal order can also be obtained against a third party, i.e. a non-defendant.
3.9.3 In order to obtain Norwich Pharmacal relief, the following criteria must be met:
- a wrong has been carried out, or at least arguably carried out, by a wrongdoer;
- the applicant intends to assert its legal rights against the wrongdoer;
- there is the need for an order to enable an action to be brought against the wrongdoer, usually to enable the claimant to identify the wrongdoer. In other words, an order is necessary to assist the claimant in achieving justice and there is no other practical source of information, or it is just and convenient to make the order sought; and
- the respondent is a person who was involved in, or facilitated the wrongdoing (even if innocently) or has some relationship with the wrongdoer sought to be identified and is able to provide the information necessary to enable the wrongdoer to be identified or sued.
The court’s residual discretion
3.9.4 A Norwich Pharmacal order is an equitable remedy and the court has discretion as to whether it should be granted in all the circumstances. In this respect, the court may balance any interest in disclosure against any other public (e.g. freedom of the press) and private (e.g. confidentiality and personal privacy) interest in order to decide whether, in all the circumstances, it is appropriate to order disclosure.
3.9.5 The court may consider the usual factors relevant to whether an interim injunction should be granted, as set out in section 3.2 above.
Norwich Pharmacal relief in support of foreign proceedings
3.9.6 Case law indicates that a Norwich Pharmacal order may be granted for the purpose of proceedings in another jurisdiction. Further, a Norwich Pharmacal order may be used to obtain documents that are subsequently used in proceedings in a foreign jurisdiction.66 Permission is probably not required from the English courts before using documents disclosed under a Norwich Pharmacal order in foreign proceedings.67
3.9.7 There is no set procedure for applying for a Norwich Pharmacal order, but the suggested approach is, if substantive proceedings have already been commenced, to issue an application under CPR Part 23; or where no substantive proceedings have been commenced, to issue a claim under CPR Part 8; or (iii) if the application is likely to be uncontested, it may be possible to dispense with issuing a claim form and instead issue an application to the court under CPR Part 23.
3.9.8 A Norwich Pharmacal application must be supported by evidence, usually in the form of a witness statement. The applicant is obliged to give disclosure of all material facts, particularly if the application is made without notice.
3.9.9 The draft order to be attached to the application should clearly set out the documents or categories of documents sought from the respondent and the time within which the respondent must provide those documents. The scope of the order should be drafted as narrowly as possible. The draft order generally contains an undertaking in damages to be provided by the applicant. A penal notice68 should be prominently endorsed on the front page; without such a notice the order may not be enforced by committal proceedings.
3.9.10 It is generally accepted that, in most cases, the applicant will be ordered to pay the costs of the party making the disclosure as well as its own costs.69
3.10 Anti-suit injunctions
3.10.1 The court may grant an injunction restraining a person from continuing or commencing proceedings in a foreign court, if it is inequitable to do so. Such injunctions will be granted only when justice requires it, such as when the foreign proceedings amount to unconscionable conduct (meaning that they are either vexatious or oppressive or interfere with the due process of the English court) or where the institution of the foreign proceedings is a breach of a binding contract, such as breach of an exclusive or non-exclusive jurisdiction clause or an arbitration agreement.70
3.10.2 However, where a court of one member state has taken jurisdiction falling within the scope of the Brussels I Regulation,71 the English court cannot grant an anti-suit injunction against that member state,72 as to do so would undermine the principal of mutual trust that underpins the Brussels I Regulation.73 The same is not true of private arbitral tribunals.
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
4.1.1 Proper adherence to the procedural requirements governing the grant of interim measures is vital.74 Failure to comply with the procedural requirements of the court may: (i) render any measure granted as a result of the flawed application improper and susceptible to immediate discharge; (ii) expose the applicant to an adverse costs order; and (iii) be a breach of the advocate’s duty to the court.
The application notice
- the order sought from the court; and
- briefly, why the applicant is seeking the order.
4.1.3 The application notice should be accompanied by the following documents:
- a claim form (if not already issued);
- witness statements or, where appropriate, affidavits and exhibits (as discussed at section 4.2 below); and
- a draft order.
The draft order
4.1.4 Paragraph 5 of the Practice Direction to CPR Part 25 sets out those matters which must, unless the court orders otherwise, be contained in an order for an injunction. They are:
- an applicant’s cross-undertaking in damages;77
- an applicant’s undertaking (where the application is made without notice) to serve on the respondent as soon as practicable the application notice, evidence in support and any order;
- a “return date”78 (where the application is made without notice to the respondent);
- an applicant’s undertaking (where the application is made before the filing of application notice) to file and pay the appropriate fee on the same or next working day;
- if a claim form is not served, directions for commencement of claim; and
- a clear statement of what the respondent must or must not do.
4.1.5 Annexed to the Practice Direction to Part 25 are examples of a freezing order and a search order. These may be modified as appropriate, but any departure from the standard wording must be drawn to the attention of the judge.
4.2 Implementation of the procedure
4.2.1 If the application is to be “on notice” (that is, where the respondent is aware of the application before it is decided upon by the court), the relevant documents must be served on the respondent as soon as practicable after being issued by the court, and not less than three days before the court is due to hear the application.79
4.2.2 Skeleton arguments should also be lodged at the court (together with any supporting documents) in advance of the first oral hearing, except in cases of extreme urgency.
4.2.3 Generally an application for an interim measure will require a hearing except where:
- the parties agree to the terms of the order;
- the parties agree that the court should dispose of the application without a hearing; or
- the court does not consider that a hearing would be appropriate.
In such cases, the court will treat the application as though it were proposing to make an order on its own initiative.
4.2.4 Generally a hearing will take place at court. However, exceptionally urgent applications and applications made without notice may be dealt with by telephone.80
4.2.5 CPR 39.2 provides that the general rule is that a hearing should be in public. However, CPR 39.2(3) lists the circumstances in which a hearing, or part of it, may be in private. Such circumstances include where: publicity would defeat the object of the hearing; the hearing involves confidential information and publicity could damage the confidentiality; or it is a hearing without notice (“ex parte”) and it would therefore be unfair to the respondent for any member of the public to be in attendance.81
4.3 Evidential requirements
4.3.1 CPR 25.3(2) provides that an application for an interim measure must be supported by evidence unless the court orders otherwise. The general rule is that evidence “is to be by witness statement (rather than by affidavit) unless the court, a practice direction or any other enactment requires otherwise”.82 However, it is well established that a party may, in support of its application, rely solely on the matters set out in: (a) their statement of case; or (b) its application notice; provided that the statement of case or application notice is verified by a statement of truth.
Without notice (“ex parte”) applications
4.3.2 As a matter of principle, no order should be made in civil proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given. The court has held that to grant an interim measure in the form of an injunction without notice “is to grant an exceptional remedy”.83 Thus, the court should not make an order without notice unless giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a freezing order or search order), or where there is some exceptional urgency, which means there is no time to give notice before the injunction is required to prevent the threatened wrongful act.84
4.3.3 When a party makes an application for injunctive relief on a without notice basis it has a duty to investigate the facts and legal issues fairly, so as to present evidence and submissions to the court in the knowledge that the judge does not have the benefit of submissions on factual and legal issues from the respondent. This includes disclosure of relevant legal principles, factual matters and/or a defence to the application even if it is adverse to the applicant’s case. The reason for this requirement of “full and frank disclosure” is because the court is wholly reliant on the information provided by the applicant.
4.3.4 The duty applies to facts that would have been known to the applicant had proper enquiries been made, and to facts actually known to the applicant.85 To this end, it is incumbent on the applicant’s legal advisers to make proper enquiries as to the evidence relied upon and the background of the dispute and, if necessary, a solicitor should give evidence as to the enquiries made. The extent of those enquiries depends upon the circumstances of the case, including: (i) the nature of the case; (ii) the probable effect of the order on the respondent; and (iii) the degree of legitimate urgency and time available for making such enquiries. It is also the particular duty of counsel to ensure that the correct legal procedures and forms are used, and that at the hearing the court’s attention is drawn to any unusual features of the evidence adduced, to the applicable law, and to the formalities and procedures to be observed.86
4.3.5 Aside from applications for a freezing or search order, applications for an injunction sought without proper notice have to include a statement supported by facts explaining fully and honestly why proper notice could not have been given and how the duty to give full and frank disclosure has been complied with.87 This obligation of disclosure to the court continues until the first hearing on notice to the other party.88
Consequences of non-disclosure
4.3.6 If an applicant fails to make full and frank disclosure, the court may discharge the injunction. It is no excuse for an applicant to say that it was not aware of the importance of the matters it omitted to state.
4.3.7 The obligation of full disclosure is owed to the court itself. Thus, in the event of any substantial breach, the court strongly inclines towards setting the order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given them.89
4.3.8 However, the court will not automatically discharge an order. In considering the consequences of any breach the court will take into account all the relevant circumstances, including: (i) the gravity of the breach; (ii) the applicant’s explanation for failing to disclose; (iii) the severity and duration of any prejudice caused; and (iv) whether the consequences of the breach were remediable and have been remedied.
With notice applications
4.3.9 A point that has yet to be determined is whether either party owes a duty of full and frank disclosure to the other on a with notice hearing.90 It can be argued that once the matter is contested each side should adduce whatever evidence is in its opinion necessary for its case.
4.3.10 However, it is generally accepted that a higher duty exists on the part of legally represented applicants when dealing with an unrepresented respondent who is the subject of a freezing order. In such a situation it can be argued that counsel’s duty (and that of the solicitor) is to the court as well as to their own client. If the applicant’s lawyers obtain evidence or information that is adverse to the applicant’s case, they must not advance a positive case knowing that such a case is false.
4.3.11 Where the application is made on notice, the respondent may file evidence in opposition to the application.91Respondents are not under any specific duty under the rules to disclose their evidence in advance of the hearing. However, deliberately withholding evidence is likely to be frowned upon, and therefore where possible, evidence should be served prior to a hearing.
Standard of proof
4.3.12 The applicant must satisfy the court of the likelihood of its case on a “balance of probabilities”.92 The more serious the allegation (e.g. fraud or dishonesty), the higher the degree of proof and the more convincing the evidence required. The standard of proof will not itself be different, but rather the seriousness of the issue will become part of the circumstances to be considered by the court in deciding whether or not the burden of proof has been discharged.93
4.3.13 Generally witnesses are not called to give oral evidence; an interim application is decided on the papers, and usually after a hearing.94
5. Legal Safeguards for the Respondent
5.1 Applicant’s undertaking in damages
5.1.1 When an interim injunction, freezing order or search order is granted the applicant is almost always required to give an undertaking in damages. This is because such interim orders are usually granted before trial, and before the merits of the case have been finally determined. The applicant undertakes to compensate the respondent if it is subsequently determined that the applicant was not entitled to the interim measure granted.95 The undertaking is often referred to as a “cross-undertaking” so as to indicate that it is given by the applicant.
Extent of the undertaking
5.1.2 The undertaking need not be limited to the respondent; the court may also require the undertaking in damages to extend to any person other than the respondent who may suffer loss as a consequence of the order.
5.1.3 The amount of the undertaking in damages may be unlimited96 or limited to a fixed sum (for example where the claimant is insolvent, limited to the sums held in the insolvent estate of the claimant).
5.1.4 The fact that an applicant is of limited means should not preclude the grant of an order for an undertaking as to damages. If there are concerns about an applicant’s financial resources the court may require either security or the payment of money into court to fortify the undertaking. Alternatively the court may require an undertaking from a more financially secure person or body who is not a party to the proceedings, such as the applicant’s parent company.
5.1.5 On an application to fortify an undertaking, the court will attempt to estimate the harm that the respondent might suffer in the event that the injunction was found to be wrongly granted, although it will often not be possible for an accurate analysis to be undertaken. In some cases (particularly freezing orders) it may not be possible to predict what loss will be caused, although it is clear that there is a risk of loss that justifies the fortification of the undertaking.97 If the application is made without notice, the applicant has a continuing duty to disclose to the respondent any changes in its financial circumstances which may impact on its ability to meet a damages award.98
5.1.6 There are two exceptional cases where the applicant will not be required to give an undertaking to the respondent:
- cases brought by the Crown, local authorities and similar law enforcement agencies (such as the Financial Conduct Authority) acting in the public interest to enforce the law;99 and
- matrimonial cases not involving property rights.
5.1.7 The undertaking is enforced by an enquiry into what loss the respondent (or third party) suffered because of the injunction. The court has an unfettered discretion as to whether or not to enforce the undertaking. Factors that the court may take into account include: (i) delay in seeking the enquiry into damages; (ii) inequitable conduct by the respondent; and (iii) good faith of the applicant.
5.2 Additional “without notice” requirements
5.2.1 The CPR provide that any order for an injunction, unless the court orders otherwise, must contain, if made without notice to the other party, an undertaking by the applicant to the court to serve the application, evidence in support and any order made on the respondent as soon as practicable.
5.2.2 In addition, applicants for an interim measure on a without notice basis are under a duty to provide full notes of the hearing to any party that would be affected by the relief sought, and a failure to do so may result in an award of indemnity costs in favour of the party affected.100
6. Timing of Interim Measures
6.1 When an interim application may be made
6.1.1 An order for an interim measure may be made at any time, including before proceedings are started and after judgment has been given.101
Before commencement of proceedings 6.1.2 An interim measure can only be granted before a claim has been made (and therefore proceedings are commenced) if the matter is urgent or it is otherwise necessary to do so in the interests of justice.102 Where no claim form has been issued, the applicant will be required to undertake to the court that it will issue a claim form immediately or as directed by the court.103
6.1.3 Freezing orders are often sought before substantive proceedings have been issued although the applicant must establish some underlying cause of action in which any judgment could be enforced against the intended respondent’s assets.
6.1.4 While the general rule is that an order for an interim measure may be made at any time, the respondent may not apply for any of the orders listed in CPR 25.1(1) before it has responded to the claim by filing either an acknowledgment of service or a defence, unless the court orders otherwise.104 This rule has limited application because most of the interim measures are remedies available to the applicant only.
6.1.5 It is well established that an applicant for an interim measure should act expeditiously105 and any unexplained delay may tilt the balance in favour of not granting the relief sought by the applicant.106 This will especially be the case where the respondent has changed its position on the basis of the applicant’s apparent lack of concern as to the state of affairs at issue or where the respondent has otherwise been lulled into a false sense of security.
6.2 Duration of an interim measure procedure
6.2.1 Generally, interim measures may be obtained within a few working days. However, it is possible to obtain an interim order (including an interim injunction) at a few hours’ notice if the urgency of the matter justifies it.
6.3 Validity of an order
6.3.1 An order will generally take effect from the day when it is given or made, unless the court specifies a later date.107 Once it is served on the respondent or any third party,108 they will have to comply with its terms, or the order can be enforced against them (see section 9 below).
7.1 Court costs and compensation for professional representation
7.1.1 The costs of applying for or resisting an injunction are notoriously difficult to predict and depend entirely on the facts and circumstances of the individual case. However, by their nature, injunctions are a time-consuming and expensive remedy. Costs will include the costs of legal representation, as well as the court fee for issuing an application.109 Factors that will impact on costs include the urgency of the application; the number of witnesses involved and whether the application is made with or without notice.
7.2 Advance on costs and security for party compensation
7.2.1 Please see generally paragraph 5.1 in relation to an applicant’s obligation to give an undertaking in damages when an interim measure is granted.
7.3 Decision on costs and cost shifting
7.3.1 The court has a discretion to decide whether costs are payable, the amount of such costs and when they are to be paid.110 Generally, the unsuccessful party will be ordered to pay the costs of the successful party,111 but the court will not approve disproportionate or unreasonable costs.112 The court may decide to award “costs in the case”, being costs in favour of the overall “winner” once the case has been tried at a final hearing.
8. Remedies Against the Decision on Interim Measures
8.1 Circumstances in which an injunction may be discharged
8.1.1 The court has a residual discretion to discharge an injunction at any time. Typically, injunctions are discharged on: (i) the settlement of the claim; or (ii) the provision of an undertaking in terms corresponding to those of an injunction. Such an undertaking has the same effect as an injunction, and if it is broken by the respondent, it will automatically be in contempt of court.
8.2 Appellate remedies
Challenging an injunction 8.2.1 Both the party against whom an interim measure is ordered, and the party whose request for an interim measure was not granted may appeal to a higher court to seek to overturn the order from the first instance court. In addition, a person who is not a party but who is directly affected by any order113 may also apply to have the order set aside or varied.114
Permission to appeal 8.2.2 The proposed appellant will in most cases need to obtain permission to appeal from the court that made the first instance decision.115 The appellant will usually need to seek permission within 21 days of the date of the initial decision.116 Where the lower court refuses an application for permission to appeal, a further application may be made to the appeal court.117 Either way, permission will only be granted where the appeal has a real prospect of success, or where there is some other compelling reason why the appeal should be heard.118
The powers of the appellate court 8.2.3 The appeal court has the power to affirm, set aside or vary any order made by the lower court, refer any issue for determination by the lower court or order a new hearing.119
8.2.4 The Court of Appeal rarely interferes with the exercise of a judge’s discretion in a freezing order and other discretionary orders unless it can be shown that the judge: (i) did not apply the proper tests; (ii) misdirected himself as to the law; (iii) took into account irrelevant points or (iv) failed to take account of matters which should have been noted.120 The fact that the Court of Appeal would have come to a different conclusion is not in itself a reason to allow an appeal.
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
9.1.1 Where a person is required by a court order to do a certain act within a specified time and refuses or neglects to do so, or a person disobeys a court order requiring him to abstain from doing an act, an applicant can enforce the order in three ways:
- notification: the applicant can notify the court in which the order was made of the respondent’s failure to comply with the order. The court may order that the act that was required to be done by the respondent be carried out by the applicant who obtained the order or some other person appointed by the court, and that the costs of carrying out the action be paid by the respondent.121
- order for committal for contempt of court: can be sought.122 Generally, the applicant will need to apply to the court in which the order for an interim measure was made.123 Alternatively, the court has the power to make an Order for Committal of its own initiative.124 The person in breach of the order may be imprisoned, fined or have its assets seized. An Order for Committal must contain a penal notice warning of the consequences of disobeying the order125 and must be served personally on the person in default.126
- writ of Sequestration: Sequestrators may take control of property belonging to the party against whom the writ is ordered until that party has complied with the court order. Where a body corporate is concerned, the property can be that of the corporate body or of any director or officer of the corporate body.127
9.2 Enforcement of interim measures issued by foreign courts
9.2.1 The Brussels I Regulation and the Lugano Convention apply to judgments within the European Union, as well as Iceland, Switzerland and Norway.128 The Brussels I Regulation permits the enforcement of interim orders in England and Wales from other EU member states without any declaration of enforceability being required.129 However, pursuant to the Lugano Convention in the case of judgments from Iceland, Switzerland and Norway, an application for registration and enforcement to the court is required.130 There are currently no rules governing the enforcement of interim orders in jurisdictions other than those listed.131
9.2.2 For judgments from Iceland, Switzerland and Norway the applicant needs to take the following practical steps to enforce an interim order:
- make an application to the High Court without notice to enforce and register the foreign interim order;132
- the application should include: (i) the authenticated order for which enforcement is sought;133 (ii) a translation into English of the same (if in another language);134 (iii) a certificate set out in the form of Annex V to the Lugano Convention, produced by the court of the issuing member state;135 and (iv) where interest is recoverable under the foreign law, the amount and rate of the interest, and the date from which it is recoverable and on which it ceases to accrue;136 and
- when an order granting permission to register an order is awarded, it must be served on the person against whom the original order was made, and must state a period within which an appeal may be made.137 Once that period has expired, the registered order may be enforced.138
9.2.3 For the purposes of enforcing an order from an EU member state, the Brussels I Regulation distinguishes between “provisional, including protective, measures” and other interim measures. The distinction is relevant since, pursuant to Article 42(2) of the Brussels I Regulation and no. 33 of its preamble, “provisional, including protective, measures” can only be enforced in other countries if the court issuing the order has jurisdiction as to the substance of the matter. While the term “provisional, including protective, measures” is not defined in the Brussels I Regulation, it has been held to mean measures intended to preserve a legal or factual situation in order to safeguard rights which are the subject of a substantive legal action.139 Presumably most interim measures would be regarded as provisional measures under the Brussels I Regulation140.
9.2.4 In order to enforce a judgment ordering a provisional, including protective, measure the applicant needs to provide the competent enforcement authority with:141
- a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
- a certificate from the court of origin in the form set out in Annex I of the Brussels I Regulation containing a description of the measure and certifying that: (i) the court has jurisdiction as to the substance of the matter; and (ii) the judgment is enforceable in the member state of origin; and
- where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment.
9.2.5 The enforcement authority may require the applicant to provide a translation or a transliteration of the contents of the certificate referred to in paragraph 9.2.4 above.142 Except in the case of protective measures, this certificate (along with the judgment if not already served on the respondent) must be served on the respondent prior to the first enforcement measure.143 The respondent may also request a translation of the judgment.144
9.2.6 Court orders obtained without notice to the respondent are not recognised under the Brussels I Regulation or the Lugano Convention, and therefore are not enforceable.145
10. Interim Measures in International Commercial Arbitration
10.1 Interim measures by state courts
10.1.1 The Arbitration Act 1996 (Act) governs arbitration proceedings in England and Wales. One of its aims is to minimise court intervention in arbitration;146 the court can intervene to support the arbitral process but not displace it.
10.1.2 The court will only intervene in arbitral proceedings where the arbitral tribunal has no power or is unable at that time to act effectively.147 Thus, in practice, the court is most commonly called upon to exercise its power to order interim measures where the arbitral tribunal has not yet been constituted.
10.1.3 The court may order that any interim measure granted will cease to have effect on the order of an arbitral tribunal or other institution having the power to act in relation to the subject-matter of the order.148
10.1.4 Subject to the parties agreeing otherwise,149 the courts of England and Wales may grant interim measures also in support of arbitral proceedings where the seat of the arbitral proceedings is in another jurisdiction, or where no seat has been determined.150 For instance, the court may issue a freezing order in support of arbitral proceedings where the seat of the arbitration is not in England or Wales, particularly if the respondent has assets in, or the applicant is based in, England and Wales.
10.1.5 The court may order such remedies where there is a good reason for the court to intervene and exercise its discretion. Courts are less inclined to intervene if the arbitration has a foreign seat and/or the proceedings are governed by foreign law, especially if there are few similarities between that foreign law and English law.151
10.1.6 The party seeking an interim measure from the English courts should complete an arbitration claim form setting out the relief sought and the grounds upon which the application is made. The arbitration claim form will usually be filed with, and supported by, a witness statement. An application for a freezing order must be supported by an affidavit.
10.1.7 If the arbitration claim form cannot be served on the respondent within the jurisdiction, the applicant will need to apply to the court for permission to serve out of jurisdiction. The court may give permission to serve out of jurisdiction if the claim is for an order in support of arbitral proceedings under section 44 of the Act.152 Once permission is granted, the applicant may serve the arbitration claim form on the respondent. Service must be effected by a method outlined in the CPR.
10.2 Interim measures by arbitral tribunal with its seat in England and Wales
10.2.1 Provided the parties have not agreed to the contrary, the arbitral tribunal has the power to grant interim relief. In that case, both the arbitral tribunal and the state courts have jurisdiction to impose interim measures. However, an arbitral tribunal has no power to compel compliance with any interim measures which it orders. This can be problem, particularly where the order affects third parties, for example in the case of freezing injunctions. A court can compel compliance (both by the parties to the arbitration, and third parties) by imposing sanctions if a party does not comply. If one of the parties does not comply with the tribunal’s order, the tribunal may request the assistance of the state court at the place where the interim measure is to be enforced, although this may be a slow process.
10.3 Interim measures by arbitral tribunal with its seat abroad
10.3.1 The recognition and enforcement of foreign arbitral awards is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). According to the New York Convention interim orders are not final and therefore do not qualify as enforceable awards. Foreign arbitral tribunals may also seek the assistance of the state court at the place of enforcement if a party does not voluntarily comply with an order for an interim measure.