Interlocutory Injunctions

An injunction is relief in the form of a court order that someone must do, not do or stop doing something. An injunction should be available whenever required by justice, and it follows that injunctions are available in a wide variety of circumstances.

Some examples of circumstances in which an injunction may be sought include to:

• restrain a breach of contract;
• prevent publication or transmission of information;
• enforce a covenant;
• restrain a party from exercising a right, such as a mortgagee's right of sale;
• compel the performance by a trustee of their duties;
• restrain a breach of statute;
• restrain the commencement of winding up proceedings; and
• prevent the use or disclosure of confidential information.

Usually a court will only grant relief in proceedings after there has been a full hearing of the evidence. However sometimes an urgent temporary injunction is required. An ‘interlocutory injunction’ is temporary in that it lasts until a full hearing of the proceedings can be conducted and a judgment delivered. 

Interlocutory injunctions may be granted where urgent circumstances exist, for example, if a person is not immediately restrained from using allegedly confidential information in the course of new employment, then by the time a full hearing can be conducted and an order restraining them made, it will be far too late. 

The purpose of an interlocutory injunction is to ensure that the jurisdiction of the court is not stultified by actions before trial that will render the final determination merely academic. 

In order to obtain an interlocutory injunction the plaintiff should rely on the evidence available at the time and does not have to make out its full case. The defendant will not usually have recourse to full or any discovery or even to cross-examination of the plaintiff's witnesses. Usually there will be only a short, limited hearing before a duty judge. 

An interlocutory injunction is a discretionary and extraordinary remedy which may be granted by a judge. There is no absolute entitlement to an interlocutory injunction.

In order to grant an interlocutory injunction the court will need to be satisfied of:

1. Whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief (often referred to as a “serious question to be tried”).
2. Whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted (often referred to as the “balance of convenience”).
3. The urgency of injunction under the circumstances.
4. If the interlocutory injunction is sought without the other party’s knowledge, ex parte, which may be necessary under circumstances where inclusion of the other party would pose a risk to the subject matter of the injunction, the plaintiff has a higher duty to present the detriment/injury that would be suffered by the defendant if the interlocutory injunction were granted.

In order to obtain relief the plaintiff must ordinarily give an undertaking as to damages. This is an agreement that the plaintiff will pay an amount of compensation assessed by the court to any person affected by the interlocutory injunction, whether or not the person is a party.

If there is not a serious question to be tried, or the plaintiff does not give an undertaking as to damages, then an interlocutory injunction will ordinarily be refused without the Court needing to consider the balance of convenience. However, where the plaintiff satisfies the court that there is a serious question to be tried and gives the undertaking as to damages, the strength of the question to be tried and the value of the undertaking then become matters to be weighed in considering the balance of convenience.

A further important factor in determining whether an interlocutory injunction should be granted is whether or not damages will be an adequate remedy for the plaintiff if the injunction is not granted. Some authorities favour this being a threshold test (i.e. if damages would be an adequate remedy, then an injunction will be refused); others treat the adequacy of damages as a remedy as a factor to be weighed in the balance of convenience. On either approach, whether damages will be an adequate remedy may be an important factor in considering whether or not to grant an interlocutory injunction and, in some circumstances, may be decisive.