DR- Chapter 5

• Pre-action remedies


  Ways for parties to try to avoid incurring the time and often, substantial costs of getting to the full trial stage
• Pre-action and/or non-party disclosure

  Encourages transparency early on in the process
• Injunctive relief


  Applying for an injunction
• Injunctions

  • types of injunctions:

  prohibitory- prevents someone from taking certain steps

  mandatory- requires the other side to do something/take action

  preventative- requires the other side to take steps to prevent harm occuring
• Interim injunction


  A temporary injunction the applicant would seek at the trial until the full case is heard
• Principles governing whether an interim injunction will be granted or refused

  1. Consideration of whether there is a serious question to be tried

  2. Balance of convenience of each party, should the order be granted

  3. Whether there are any special factors that ought to be taken into account

  4. Whether an award of damages would be an adequate remedy
• Undertaking in damages


  A promise that the claimant (your client) will compensate the defendant for any loss suffered as a result of the injunction, should it transpire that it ought not to have been granted in the first place
• The American Cyanamid principles do not apply to applications for freezing injunctions and search orders
• Without notice application


  An injunction order made by the court on a without notice application must be personally served on the defendant extremely quickly and another hearing will be arranged for a short time later – a "return" hearing
• Procedure to apply for interim injunctions

  1. Filing the application notice

  2. Paying the relevant court fee

  3. Observing the rules on service

  4. Providing a draft of the order sought

  5. Supporting applications for search orders and freezing injunctions with affidavit evidence

  6. Supporting applications for other interim injunctions with evidence (witness statement, statement of case or application notice)
• Penal notice


  All injunctions must be endorsed with a penal notice when drawn up and must be personally served to the defendant
• Contempt of court


  Breach of an injunction is a contempt of court for which the defendant can be committed to prison, fined or have their assets seized
• Discharging an interim injunction


  Defendant must apply on notice to a judge on grounds such as material non-disclosure, failure to comply with terms, facts not justifying relief, injunction being oppressive, material change in circumstances, or claimant failing to prosecute the claim
• Freezing injunction


  Designed to freeze the assets of a defendant if there is a risk they may dispose of these assets or remove them from the jurisdiction before the claim proceeds to trial
• Procedure for applying for a freezing injunction

  1. Application made without notice to a (High Court) judge in private

  2. Submitting documents such as application notice, statements of case, affidavits, previous orders, skeleton argument
• Requirements for a freezing order

  • Terms must be clear, specifying the assets frozen and the period of time the order lasts
  • Defendant and affected third parties (e.g. banks) must be notified of their right to apply to vary the order
• Freezing order


  An order that prevents a defendant from dealing with their assets
• A freezing order must state the period of time it is to last for and the defendant is entitled to apply for the discharge of the injunction
• A third party, such as a bank or other financial institution, may be affected by a freezing order</b>
• Affected third parties must be notified of their right to apply to the court for directions or for a variation of the order
• Search order- defined in CPRr25.1(h) as order under s7 CPA 1997which empowers courts to make such an order


  A specific type of without notice order against the defendant that requires them to permit the claimant to search for and seize evidence which would otherwise be destroyed

  • is a mandatory injunction
  • is the last resort
• CPR r25.1(1)(h) defines a search order as an order under s7 Civil Procedure Act 1997, which empowers the court to make an order for the purpose of securing the preservation of evidence and property relevant to the proceedings
• The original name of the search order comes from Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55
• Procedure for applying for a search order

  1. Application is made without notice to a judge, usually after issue of the claim form but before service

  2. Claimant must support the application with the claim form or draft claim form, affidavit or draft affidavit, and draft of the proposed order

  3. Other interim relief may be sought at the same time
• Requirements for granting a search order

  • There must be an extremely strong prima facie case on the merits
  • The defendant's activities must cause serious (potential or actual) harm to the claimant's interests
  • There must be clear evidence that the incriminating documents or things are in the defendant's possession and that there is a real possibility that such material may be destroyed before any on notice application can be made
• The defendant is able to apply to vary or discharge the search order at short notice
• Pre-action disclosure


  A means of bringing a dispute to an early end by obtaining disclosure of documents from a potential defendant before a substantive claim is issued
• Under s33 Senior Courts Act 1981 and s52 County Courts Act 1984, the court has the power to order pre-action disclosure
• Requirements for pre-action disclosure

  • The application must be by and sought against parties who are likely to be party to a subsequent action
  • The application must relate to documents that fall within the definition of standard disclosure
  • The advance disclosure must be necessary to dispose fairly of the anticipated proceedings, save costs, and/or assist the resolution of the dispute without the need to commence proceedings
• Scenarios for pre-action disclosure

  • Clinical negligence cases
  • Injury at work cases
  • Road traffic accident cases
• Procedure for pre-action disclosure

  1. Complete an Application Notice (Form N244)

  2. File the application with the court and serve on the respondent

  3. Respondent may file evidence in reply

  4. Evidence is given by way of witness statements

  5. Hearing will be in public unless the court orders otherwise
• Non-party disclosure


  Orders for disclosure against a person who is not a party to the proceedings
• The court only has jurisdiction to order non-party disclosure where the documents sought are likely to either support the case of the applicant or adversely affect the case of one of the other parties, and disclosure is necessary to dispose fairly of the claim or to save costs
• Situations for non-party disclosure

  • Disclosure of information or documents held by a bank in relation to an account holder