Instigating an Injunction

Wednesday 20 April 2011

Applications for Injunctions are becoming increasingly common, particularly amongst celebrities who frequently want to prevent publication of newspaper stories about them. However, Injunctions can be a useful tool in a variety of disputes.

On an almost weekly basis, we hear of yet another pop star or footballer who has obtained an Injunction against a newspaper with their identity remaining unknown. Many more obtain “Super Injunctions” which means that even the fact that the Injunction has been granted cannot be reported.

A recent example widely reported was the unveiling of the identity of the mysterious character from the Top Gear programme known only as “The Stig”. The BBC sought an Injunction against the publisher Harper Collins preventing publication of the autobiography of former Formula 3 driver Ben Collins in which he revealed himself as the man behind The Stig character, despite the intention that he should remain anonymous. The Judge refused the Injunction on the basis that The Stig’s true identity was well known despite the apparent mystery surrounding him and therefore that the information was no longer confidential.

The number of privacy cases has increased by over 50% in the last year. But it is not only celebrities who can benefit from Injunctions, which can be obtained in many types of disputes.

An Injunction is an Order of the Court which requires a party to do or refrain from doing a certain act. Injunctions are imposed at the discretion of the Court where it is just and convenient to do so and where there is a serious issue to be tried. The Court will not grant an Injunction where damages would be an appropriate alternative.

There are three types of Injunction:-

1. Mandatory – requires a specific act to be done e.g. “you must remove that obstruction”
2. Prohibitory – requires a party to stop doing a specific act e.g. “you must not publish the libellous article”
3. Quia Timet – requires a party to act to prevent harm occurring in the future

Injunctions can be obtained at any time, including before proceedings have started or after a Judgment has been given. Injunctions can be obtained without notice to the other party if there are good reasons for this e.g. extreme urgency or a need of secrecy. Injunctions are remedies, not causes of action. Therefore, you cannot sue for an Injunction.

The Court will decide whether to grant an Injunction based on the Balance of Convenience test. The Court will weigh the interests of both parties and if one party would be unduly harmed by the making of an Injunction, the Court will refuse the Application.

The Court will require the Applicant to provide an Undertaking in Damages which means they will have to compensate the other party for any losses incurred as a consequence of the Injunction if it is later held that the Injunction was wrongly granted.

Any Application for an Injunction must be made promptly. The Application can be easily defeated on the grounds of either delay or acquiescence i.e. a failure to act so that the other party believes the Applicant has agreed to the specific act.

Injunctions often have a Penal Notice attached which means that if the Defendant breaches the Injunction, they will be held in Contempt of Court and may be fined or imprisoned. Because of the serious nature of an Injunction, they can be difficult to obtain and the Court will require detailed evidence in support of any Application.