Three Steps to Obtaining an Injunction for Your Business in England

Your business will likely store a sizeable amount of sensitive information. Most business owners label valuable information as confidential information, trade secrets or Intellectual Property (IP). The loss of these data types can cause your organisation sizeable reputational and financial loss. This article will explore the use of injunctions to help protect your sensitive and valuable information and consider the three main steps in obtaining an injunction for your business. 

What is an Injunction?

In brief, an injunction is a court document ordering a party to act in a certain way. The majority of court injunctions order one (or both) of the following:

1. ordering a party to refrain from performing a particular act, such as disclosing trade secrets to a competitor, known as a freezing order; or
2. compelling a party to act in a specific way, such as deleting all copies of confidential information in their possession within five days.

Are There Different Types of Injunctions?

Yes, there are two main types of court injunctions. The first is a mandatory injunction that orders a party to perform a specific action. The other is a prohibitory injunction, which prohibits the party from doing a specific thing.

It is possible to bring an action seeking an order for action and prohibiting conduct. For example, suppose an employee unlawfully takes a draft manuscript for a much-awaited book home with them. After resigning, they threaten to sell it to a newspaper. Accordingly, the publishing house is likely to seek an injunction which orders:

• the deletion of the manuscript (and any additional copies); and
• a prohibition on contact with any media outlet regarding the manuscript’s contents before publication.

Now that we know the types of injunction available let us consider the three main steps of pursuing one at the High Court.

1. Obtaining Legal Advice

Applying for injunctions is a complex and convoluted process. Therefore, a business rarely attempts to do so themselves. Instead, most business owners seek legal advice from an expert lawyer. This is advisable due to an injunction application’s high cost and time-consuming nature. 

Lodging an injunction claim against another party can be very expensive, particularly since most courts will order your business to pay the other party’s costs if your claim is unsuccessful. A lawyer can help advise you on taking a commercial approach and weighing whether the financial cost and potential chance of defeat are worth the advantages gained by winning.

2. Sending Warning Off Letters

A lawyer will likely advise your business to send the other party a ‘warning off’ letter. This seeks to warn the other party against a specific action without the need for formal legal action.

Most business owners engage a lawyer to draft this letter. Whilst letters are unique to the individual’s circumstances, most of them will include some of the following:

• a summary of the alleged unlawful conduct or breach of contract;
• an explanation of why this gives rise to a potential injunction and the type of injunction;
• the likely impact of the commercial injunction order on them; 
• the fact that any successful application for an injunction would likely give rise to them paying the legal costs incurred obtaining the court order; and
• an explanation of what the party needs to do to avoid an injunction. For example, returning certain documents or signing a document confirming they will not perform a particular action.

3. Starting Formal Legal Proceedings

Unsurprisingly, the final step is lodging a claim with the relevant court. Again, drafting and lodging a formal injunction application is complex, and most businesses ask their lawyer to do so.

There usually are two hearings within an injunction process: 

• an interim injunction hearing; and 
• the main injunction hearing.  

The interim injunction hearing is crucial because it usually gives the parties an indication of what will happen at the final hearing. Commonly, judges at an interim hearing comment on the likely success of the injunction at the final hearing. This is because the judge will consider whether to grant a temporary interim injunction based on the chance of success.

Thus, if a judge feels that the injunction is unlikely to be granted at the final injunction hearing, they are unlikely to grant an interim injunction. In this scenario, a lawyer will likely advise your business to strongly consider a settlement before the final injunction hearing. The opposite may be true if your company successfully obtains an interim injunction. Additionally, with two hearings comes twice the cost. Injunction proceedings are costly and only usually worth entering into if the information is very valuable.

Key Takeaways

It is always helpful to obtain expert legal advice when your company is considering an injunction against another party. Failing to do so could lead to mistakes within the complex court forms and your business having a weak injunction claim and at risk of paying the other party’s sizeable legal costs. Sending warning off letters is good practice because they do not bind your organisation into starting court proceedings. Accordingly, you should only lodge a formal injunction application when you have a strong case.

If you need help obtaining advice and assistance with injunctions, our experienced contract lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page. 

Frequently Asked Questions