Injunctions (Undertaking as to Damages)

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An injunction is a remedy that is draconian in its nature and discretionary. Where a court orders an injunction it will in effect require an individual to do something (mandatory injunctions) or cease to do an act (prohibitary injunctions) for a particular time or until the matter comes to trial. Should the individual breach the court order then he or she will be held in contempt of court.

It is for this reason that injunctions are difficult to obtain particularly as an application must be made quickly as any delays will damage the prospects of obtaining one. Further, the application must show on its face that there is a substantive claim by producing written evidence in support of the application but must also show that damages are not an adequate remedy.
Usually injunctions are made once proceedings have been issued and the matter is being heard at trial. When an injunction is granted before the trial of an action one must show that it is urgent or in the interests of justice that an injunction be granted. This type of injunction is known as an interim injunction.

Interim injunctions are usually prohibitory injunctions and the primary aim is to maintain the status quo pending a full trial of the action.

The court does not grant interim injunctions lightly and where it does it requires that the applicant give “an undertaking to the court to pay any damages which the respondent sustains as a result of the injunction that the court considers the applicant should pay should”. If later at trial the applicant fails to establish their right to the injunction and the court determines that it should not have been granted the undertaking is enforced and the damages could be substantial.

It is important to note that when seeking to obtain an interim injunction that the court can sometimes consider whether to require an undertaking by the applicant to pay any damages sustained by a person other than the respondent who may suffer loss as a result of the order made by the court.

It is for this reason that the court may require the applicant to prove that he or she has the means to meet the potential liability under the undertakings. This is a consideration taken into account by the court when deciding whether or not to order an interim injunction. Normally in cases such as boundary and easement cases it is assumed that the owner or possibly the lessee of land has the ability to pay damages. In other cases such as where an applicant resides out of the country security may have to be given.

It is therefore important to consider the implications of giving an undertaking before making an application for an interim injunction.

We at Quinn & Co have experience of making applications for injunctions. If you are considering this possible remedy for your claim and wish to discuss this matter please contact Joseph Quinn on 01392 248858


This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.


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