What is an injunction?
An injunction is a Court order prohibiting a person from taking a particular action (a prohibitory injunction) or requiring them to take a particular action (a mandatory injunction). The first step will usually be to obtain an interim injunction. This is a temporary injunction, which is usually granted pending a further hearing or until a full trial of the dispute.
An injunction may be necessary to preserve or prevent the loss of an asset, protect against personal harm, prevent loss or damage to reputation and safeguard business or personal interests. Their draconian nature means that there are stringent principles in place to determine whether a party will be entitled to an injunction.
An application for an injunction can be made once Court proceedings have begun. Alternatively, the Court can grant an injunction before the start of Court proceedings if the matter is urgent or if it necessary in the interests of justice.
An injunction made before a case goes to trial is known as an "interlocutory" or "interim" injunction. It can be expressed to remain in force for a particular period of time. Otherwise, it remains in force until the matter comes to trial or until the Court makes any further order. When the matter comes to trial, the Court will decide whether or not to make a "final" injunction.
If you are served with an injunction then you should seek legal advice immediately if possible.
It is also important that you do not take any steps which might breach the terms of the injunction in any way, as a breach of an injunction is generally punishable as a contempt of Court which in some circumstances can lead to imprisonment.
You should also take any action necessary in order to preserve evidence which might be relevant to your case, so long as these steps do not amount to a breach of the injunction.
An application for an injunction is usually made by giving the other party notice of the application, but, as discussed, it can be without notice if there is a real emergency or need. Any order made in this way will only take effect for few days until a return hearing, at which the court will hear arguments and evidence from both sides.
In an emergency, an injunction can be obtained very quickly without giving notice to the other party. Urgency arises most often where the other party would take advantage if given notice of the application or where further damage would result from any delay in making the application.
Recent changes to the law
Injunctions against Persons Unknown
It has been recognised since at least 2003 that injunctions could be made against described ‘Persons Unknown’, when it was known that someone was committing or was threatening to commit a wrong, but the identity of that person was unknown.
In recent times ‘Persons Unknown’ injunctions have become popular with those fearing that their lawful activities will be disrupted by unlawful direct action protest by unknown protestors. If an injunction against ‘Persons Unknown’, prohibiting the unlawful protest behaviour, is obtained, then any protestor who breaches the injunction would become a party to the litigation. Further, if they were aware of the injunction at the time that they breached it, they would be liable to committal for contempt of Court. Such injunctions have become more controversial. Protestors argue that they have a chilling effect and tend to suppress both lawful and unlawful protest; and that they amount to wrongful interference with protestors’ freedom of expression and freedom of peaceful assembly pursuant to articles 10 and 11 of the European Convention on Human Rights.
In Ineos Upstream v Persons Unknown the Court of Appeal considered an interim injunction made against protestors and set down various principles to be applied when such injunctions were sought. In particular, it was emphasised that:
- Defendants should be identified and named when they can be identified and named;
- It had to be possible to give effective notice of the injunction and for the method of such notice to be set out in the order;
- The injunctions must be worded clearly and precisely so that there can be no doubt what has been prohibited; and
- The injunction ought to have clear geographical and temporal limits.
Cameron v Liverpool Victoria: the Importance of Service
In Cameron v Liverpool Victoria Insurance Co Ltd the leading judgment was given by Lord Sumption JSC who explained that:
The Court’s jurisdiction over a party has its origin in the valid and proper service of the proceedings on that party, which gives that party notice of the claim against him and the opportunity to be heard. If the unknown described defendant can never be served then it cannot be appropriate to issue or pursue proceedings against him because he can never fall under the jurisdiction of the Court.
For that reason, it is necessary to distinguish between two kinds of case. The first is where the anonymous defendants are identifiable in some way. Their names may be unknown but they are identifiable. The second is where the anonymous defendants cannot even be identified. In the first category, it is possible to locate or communicate with the anonymous described defendant and to know without further inquiry whether any particular person is the described defendant, whereas in the second category it is not.
Orders against squatters fall into the first category. Although the identities of those trespassing might not be known, they are identifiable by their location. They can be communicated with. Documents left at that location might reasonably be assumed to come to their attention.
Someone who can never be identified, however, could never be served and would never been served. He or she would never fall under the jurisdiction of the Court. That was not just a practical problem, but also a conceptual problem going to the right of a defendant to be heard, a fundamental principle of natural justice.
In the recent cases concerning the Insulate Britain injunctions, XR’s barrister successfully argued to amend the injunctions to remove a reference to service being made by email to an address operated by IB, as there was no way to know who could have seen a notice sent to that address.
Canada Goose – the Problem of ‘Newcomers’
In Canada Goose v Persons Unknown the retailer applied for a final order by way of summary judgment. One of the reasons it lost concerned the propriety of making a final injunction against persons unknown.
In addition to the two categories of persons unknown identified in Cameron, there was identified a third category, which were described as “Newcomers”. These were persons who had not been served with the proceedings, nor been involved in the unlawful protests at the time of the trial. They were not parties to the litigation and so they would be Newcomers to the injunction if and when they committed one of the prohibited acts and thereby became parties to the litigation and subject to the injunction. It was considered that it was objectionable for such Newcomers to be subject to final orders of the Court in that way without having been heard. Unknown individuals, without notice of the proceedings, should not find that they have judgment and a final injunction granted against them.
Final injunctions could only be made against those who had been served with the proceedings (and were therefore identifiable) or who had become parties by breaching the interim injunctions (and who were therefore identifiable) and therefore had the opportunity to be heard at the trial. The Court of Appeal upheld this ruling.
Barking and Dagenham – a Complete About Turn
In Barking and Dagenham v Persons Unknown the Court of Appeal heard appeals from several local authorities who had obtained injunctions prohibiting persons unknown from trespassing on local authority land by setting up unauthorised encampments.
The Court of Appeal in Barking and Dagenham conducted a comprehensive review of the authorities concerning injunctions against Persons Unknown. It clarified immediately that there was no theoretical or jurisdictional basis for treating trespass injunctions differently from protestor injunctions. Canada Goose could not therefore be distinguished on the grounds that it concerned a protestor injunction. The Court considered that there was no fundamental difference between interim and final junctions. As the Court had jurisdiction to make interim orders in terms that would take effect against Newcomers it followed that it had jurisdiction to make final orders in such terms that they would have effect against Newcomers.
The Court considered that Cameron had been misunderstood. Lord Sumption JSC had not been concerned with Newcomers; but, in any event, his comments did not identify any jurisdictional problem with final orders against Newcomers because, whether the injunction was an interim injunction or a final injunction, before any steps could be taken against Newcomers, they would necessarily have become aware of the proceedings and of the orders made, and made themselves parties to the proceedings by breaching the order(s). They would, at that point, have the opportunity to be heard by the Court and so would fall within the jurisdiction of the Court.
But the issue on which the two Courts differed so strikingly is a fundamental one: whether it is objectionable as a matter of principle that Newcomers to an injunction order should find themselves subject to a final order (and, moreover, in breach of it) without having been given notice of the proceedings and an opportunity to be heard at the hearing at which that injunction was injunction. There is no authority directly considering that issue other than Canada Goose and Barking and Dagenham. Canada Goose says that it is objectionable; Barking and Dagenham says that it is not. At present, it is safer to assume that the law stands according to the ruling in Barking and Dagenham and that there is a possibility of Persons Unknown falling within the scope of even a final order as Newcomers.
Ultimately, however, certainty will only be achieved once there have been a series of Court of Appeal decisions following one or the other; or if the issue is resolved by the Supreme Court. The case may now be heard by the Supreme Court.
Undertakings - a promise given to a court by a person
One way of getting out of an injunction to which you are added is to give an undertaking. This is a promise given to the court. If a person is accused of violence, threats, harassment etc., then they can promise the court not to behave in this way in the future.
The person who gives the undertaking does not have to admit that they have done any of the acts they are accused of.
The undertaking is therefore given without admitting anything.
Once an undertaking has been given it has the same effect as a court order.
This means if it is broken then it will be contempt of court and an application can be made for committal to prison.
Giving an undertaking often allows you to avoid large legal costs and court costs and allows the action against you to come to a swifter conclusion. However, it is vital to not see this as the easy way out and just go for it if given the chance. Instead, get in touch with us and we can support with getting in touch with lawyers too.
Once again, you should not enter into an undertaking without legal advice. Get in touch with us, if this arises.