Insights

Think Twice Before Applying for an Ex-Parte Interim Injunction 

In the realm of legal remedies, an ex-parte interim injunction is a powerful tool. It allows a party to seek an immediate court order without notifying the opposing party.  

An application for an injunction can either be ‘ex parte’ or ‘inter partes’. With ex parte applications, also known as a without notice applications, only the party seeking the injunction has the chance to present their case to the court. With inter partes applications, both parties will present arguments to the court. 

An application for an ex-parte interim injunction, whilst potent, should be wielded with caution. 

1. Presumption of Open Justice 

One of the foundational principles of the UK legal system is open justice. This principle ensures that legal proceedings are conducted openly and transparently. When seeking an ex-parte interim injunction, this principle is challenged because the other party is not given an opportunity to present their case. Courts, therefore, tend to scrutinize such applications rigorously. Before seeking an ex-parte injunction, consider whether the urgency and potential harm outweigh the need for open justice. 

2. Duty of Full and Frank Disclosure 

Applicants for ex-parte injunctions have a duty of full and frank disclosure. This means that you must present all relevant information to the court, even information that may not be favourable to your case. Failing to meet this duty can have serious consequences, including the injunction being set aside or even contempt of court charges. It’s essential to weigh the risks of non-disclosure against the potential benefits of the injunction. 

3. Risk of Damages 

If it later turns out that your ex-parte injunction was wrongly granted, you may be liable to pay damages to the other party for any losses they suffered as a result. This risk should not be taken lightly, as it can have significant financial implications. Careful consideration of the strength of your case and the potential harm is crucial. 

4. Impact on Your Credibility 

Seeking an ex-parte injunction can have an impact on your credibility in the eyes of the court. If it is perceived that you have rushed to court without attempting to resolve the matter through negotiation or other means, it may affect the court’s view of your conduct. Judges take a dim view of parties who appear to abuse the court process. 

5. Alternative Dispute Resolution (ADR) 

Before rushing to court, it is advisable to explore alternative dispute resolution methods such as mediation or arbitration. These methods can often lead to quicker and more cost-effective resolutions without the need for an injunction. Courts often encourage parties to consider ADR, and your willingness to engage in these processes may be viewed positively. 

6. Costs Considerations 

Legal proceedings, including injunctions, can be costly. Applying for an ex-parte injunction involves legal fees, court fees, and potentially the costs of the other party. Before granting an interim injunction, the Court will usually require the party applying for an injunction to give the other side a “cross-undertaking in damages”, which is a promise to compensate the other party for any harm that the injunction may cause, if the Court should decide at a later date for whatever reason that the injunction should be discharged or should not have been granted. You should carefully assess whether pursuing an injunction is financially viable, especially if the potential benefits do not outweigh the costs. 

7. Reputational Risks 

Legal battles can also have reputational consequences. Think about how your actions may be perceived by the public, clients, or business partners. Engaging in protracted legal disputes, especially when seeking ex-parte injunctions, may not align with your long-term interests. 

Recently, a mortgagor filed an ex-parte application for an injunction restraining a mortgagee from selling a property. An interim injunction was granted. On the return date, MSR Solicitors successfully assisted our client to secure a dismissal of the mortgagor’s application and discharge the interim injunction on the ground that there was no legal or equitable basis for giving the mortgagor what he sought. The mortgagor was further ordered to be responsible for legal costs spent by the mortgagee. 

CONCLUSION 

In conclusion, whilst ex-parte interim injunctions can be a powerful legal remedy, they should not be sought without careful consideration. The principles of open justice, duty of disclosure, and potential risks, both financially and reputationally, should give any applicant pause. Before taking this legal route, explore alternative dispute resolution methods, weigh the risks against the benefits, and ensure that you are prepared to meet your obligations to the court.

If you require any further information on injunctions or other kinds of legal remedy, please contact us. 

*This article is not legal advice but provides a general overview. The specific details of your case will determine the best course of action.