Injunction applications are a regular feature of property litigation work, but are often underestimated by potential applicants in terms of the amount of work involved and the costs.
Depending on the circumstances, it might be necessary to seek an urgent injunction from the court, and if that is the case, then a significant amount of work has to be done in a very short space of time.
An applicant should only consider making an urgent application to the court if the circumstances justify the immediate intervention by the court. In some circumstances, it may be more advisable to refrain from seeking an urgent/interim injunction and instead issue proceedings seeking a final injunction.
In the guide below, we answer some frequently asked questions in relation to injunctions.
What makes the property dispute “urgent”?
This very much depends on the circumstances of the case, but frequent cases we have been involved in which justify an urgent application to the court include a neighbour threatening to undertake works that will affect the applicant's building, or cases of trespass.
There is no prescribed criteria for what makes a case suitable for an urgent interim injunction. However, it is essential to approach the court promptly if you are seeking interim relief. Delay of only a few days or weeks can be critical, depending on the circumstances.
If an urgent injunction is required, the applicant has a choice as to whether or not they approach the court without giving notice to the other party or “on notice”. The legal term for an applicant unilaterally applying to the court for an injunction and not giving notice to the other side is called “ex parte”. There are considerable risks associated with making an ex parte application to the court, as it does not allow the other side to attend and provide their account and evidence. Very few circumstances justify such an approach.
It is more usual for an urgent injunction application to be made “on notice” where the other side is given details of when the applicant is going to attend the court and when the hearing is going to take place, so that they can attend and make their own submissions.
What types of injunctive relief are available?
If the circumstances justify it, then an applicant can make an interim or urgent application to the court. However, in some situations, if there has been a delay in the applicant approaching the court, they may decide not to seek an urgent injunction. Instead, they may issue court proceedings and seek a final injunction as the legal remedy. If an application for an interim/urgent injunction is made, the applicant needs to think very carefully before doing that because the court will require, as appropriate, the applicant to give a cross-undertaking in damages to the other party.
Putting that in context, what that means is that the applicant has to give an undertaking to the court that if the court grants the interim injunction and that causes loss to the other party and at the final hearing the court decides that they are not going to continue the interim injunction, then the applicant could be liable to compensate the other party for the losses that they have suffered whilst the interim injunction was in place. If an Applicant applies for and is successful in obtaining an interim injunction order, it is also usual for the courts to insist that the applicant then issue a full set of court proceedings, which would then include an application for a final injunction, within 14 days of the date of the first interim injunction hearing.
What is the application process for emergency relief?
Legal advice should be taken from a solicitor in the first instance to assess the merits of making an emergency injunction application. If the solicitor considers that the circumstances justify the application, then the solicitor will also contact a barrister's chambers to see who is available to attend court on an urgent basis. Often, the barrister's clerks are very helpful in contacting the court to find out who the emergency Judge is that particular day, and find out their availability. The clerks often also put the court on notice that an interim application is about to be made. Arrangements will then be made for the Judge to be available to hear the application. If the application is being made "on notice”, then as soon as the time of the hearing is confirmed with the court, notice should be given to the other parties so that they can attend and make their own representations.
What are the evidence requirements for urgent applications?
An application notice setting out the order that the applicant requires needs to be completed and issued with the court. In addition, a supporting witness statement will need to be lodged with the court so that the court can understand the circumstances that give rise to the application and consider whether or not an interim order ought to be made. There is no specific criteria for what needs to be included in a supporting witness statement, but it does need to set out the background to the matter so that the court can properly make a decision on an urgent basis.
It is also usual before an application is issued, for the solicitors to have contacted the other party and requested that they give a written undertaking that they will refrain from taking a certain action and warning that if they will not give that written confirmation, then an urgent injunction application will be issued. The courts are not impressed if the applicant simply asks the court to grant an interim injunction application without trying to first engage with the other party and persuade them to co-operate.
Court procedures and hearing expectations
When the application for an urgent injunction is issued, the court needs to be given information as to how long the hearing is likely to last. As the application is being made on an emergency basis, the court is unlikely to have many hours of judicial time available. Therefore, an emergency application is usually only listed for around two hours.
As mentioned above, it is common for correspondence to be sent to the other party before the injunction application is issued, requesting that the other party give written confirmation that they will not take a particular action or start particular works, for example. The other party is invited to provide a written undertaking not to commence work, for example. However, they often refuse to do so at that stage. However, once an interim injunction application has been issued, and the parties are in court, the other party may be more willing to agree to give the undertaking to the court.
Frequently, written undertakings are given once the application has been issued, particularly because the other party does not want to risk an adverse costs order against them.
It is common for the Judge to make a reserved costs order on an interim injunction application, because at that stage the court has not had the chance to consider all of the evidence fully, and it takes the view that it would be unfair at that stage to penalise one of the parties in terms of having to pay costs.
How are injunctive orders enforced?
They are usually accompanied by a penal notice, which warns the other party that if they breach the terms of the injunction order, then they can be in contempt of court and liable for arrest and imprisonment.
What are the costs of urgent injunctions?
A huge amount of work has to be done in a very short space of time if instructions are received and an urgent application has to be made within, typically, 48 hours.
It is usual for at least five to eight hours to be spent taking proper instructions and finalising the supporting witness statement to support the application. Solicitor's fees are usually around £3,000 to £4,500 plus VAT for an urgent application, and counsel’s fees may be a similar amount.
The applicant needs to bear in mind that they will be ordered to issue full court proceedings within 14 days of any interim order being granted and therefore in addition to the initial work to obtain the injunction application, there will be a further significant amount of work that will have to be done very quickly after the hearing in order to draft and issue the full set of court proceedings. It would therefore be sensible to budget for between £10,000 and £15,000 plus VAT in this scenario.
Obviously, once full-blown court proceedings have been issued, if they are defended, then the costs could continue to increase significantly and easily be between £50,000 and £100,000 plus VAT.
Seeking an injunction in any form, therefore, needs to be taken very seriously.
Are there alternatives to injunctive relief?
Before issuing any injunction application, it would be very wise for a party to engage a specialist property dispute solicitor and for the solicitor to write to the other side and ask them to give a written undertaking that they will refrain from taking a particular step, as appropriate.
Written undertakings can be given to stop a party from applying to the court for an urgent injunction.
Damages could also be an alternative remedy, instead of an injunction.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
