Responding to an Injunction Application

The initial response of many respondents is outrage upon receiving an application notice or even a request for an undertaking to refrain from the allegedly infringing conduct. This is where calm reflection and an assessment of interests is required. Often, the a request or application is a try on, but it is not always. The respondent has to compare the loss that he or she will suffer by giving the undertaking with the cost and inconvenience of contesting it. 


This cost will usually include settling one or more witness statements showing why the application should not be granted. He or she also has to consider the risk that he or she will have to bear not only his or her own legal costs but also a large share of the other side's. Most applications for interim injunctions take less than a day and the costs of the application are assessed immediately after the hearing. That usually means that the losing party has to find thousands (and sometimes tens of thousands of pounds) within 14 days of the hearing. If he or she fails to do so, the successful party can take all the usual steps to execute judgment which may sometimes result in the losing party's bankruptcy or charge over his or her property.  If a respondent decides to give the undertaking sought, he or she should make clear whether it is given only to the other side or to the other side and the court. If the latter, the respondent should be aware that the practical effect of such an undertaking is equivalent to an injunction and that any breach of its terms may be punished in exactly the same way as a breach of an injunction.  For all these reasons, consideration as to the appropriate response should really be made in consultation with a barrister or other advocate who would be asked to resist the application.

How the Court Decides

Although some litigants regard interim applications as previews or even substitutes for a trial, that is their function. All the court needs to consider at this stage is whether the complainant can win and, if so, whether  there is a greater risk of injustice to the complainant in denying him interim injunctive relief than there is to the respondent in granting it or vice versa. Guidelines for considering those issues were set by the House of Lords in the landmark case of American Cyanamid Co v. Ethicon Ltd [2001] 1 WLR 194Because the court is balancing one party's interests against the other, it will not grant an interim injunction without obtaining a promise to the court from the complainant to compensate the injuncted party for any loss or damage that it may sustain from the order should the court later conclude that the injunction should never have been granted. This promise is known as "a cross undertaking as to damages" 


Click here for a situation where an injunction is likely to be granted and here for an example of one where an injunction would probably not be granted.