CHAPTER 28

INJUNCTIONS
TABLE OF CONTENTS
1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-01
2. PROHIBITORY INJUNCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-06
3. MANDATORY INJUNCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-14
4. ACTION QUIA TIMET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-20
5. INTERIM INJUNCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-23
(a) American Cyanamid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-23
(b) Exceptional situations . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-25
(c) Function of appellate court . . . . . . . . . . . . . . . . . . . . . . . . 28-33
(d) Undertaking as to damages . . . . . . . . . . . . . . . . . . . . . . . 28-34
(e) Search orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-35
(i) Order for disclosure and interrogatories . . . . . . . . . . . 28-39
(ii) Full disclosure by claimant required . . . . . . . . . . . . . . 28-41
(iii) Custody and non-use of items seized . . . . . . . . . . . . . . 28-42
(iv) Improperly obtained orders . . . . . . . . . . . . . . . . . . . . . 28-43
(v) Order after judgment . . . . . . . . . . . . . . . . . . . . . . . . . . 28-44
(vi) Abuse of search orders . . . . . . . . . . . . . . . . . . . . . . . . . 28-45
(f) Freezing injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-46
(i) A good arguable case . . . . . . . . . . . . . . . . . . . . . . . . . . 28-47
(ii) Real risk of defendant’s assets being disposed of . . . . 28-48
(iii) Undertaking in damages . . . . . . . . . . . . . . . . . . . . . . . . 28-49
(iv) Defendant’s business and living expenses or legal costs . 28-50
(v) Position of third parties . . . . . . . . . . . . . . . . . . . . . . . . 28-51
(vi) Order for disclosure and interrogatories . . . . . . . . . . . 28-52
(vii) Order for delivery up of goods and entry to premises . 28-53
(viii) Full disclosure by claimant required . . . . . . . . . . . . . . 28-54
(ix) Duty to continue with claim . . . . . . . . . . . . . . . . . . . . . 28-55
(x) Order after judgment . . . . . . . . . . . . . . . . . . . . . . . . . . 28-56
6. INJUNCTIONS AND DECLARATIONS AGAINST THE CROWN . . . . . . . . 28-57

1. INTRODUCTION
Principle on which injunction granted1 In addition to the remedy by action for 28-01
damages in respect of torts which have actually been committed, there is, in certain
cases, a remedy by way of injunction to prevent the commission of torts which are
threatened or anticipated or, in cases of continuing injuries, to restrain their

1 D. Bean, Injunctions, 13th edn (2018); A. Burrows, Remedies for Torts, Breach of Contract and
Equitable Wrongs, 4th edn (2019), Ch.23; R. Sharpe, Injunctions and Specific Performance, 4th edn
(2012), Pt I; I. Spry, Equitable Remedies, 9th edn (2013), Ch.4. See generally J. Murphy, “Rethink-
ing injunctions in Tort Law” (2007) 27 O.J.L.S. 509.

[2153]
 INJUNCTIONS

continuance. The principle upon which such injunction is granted is that the injury
to be inflicted would be of such a character that the claimant could not practically
be compensated in damages. In some cases the injunction takes a mandatory form,
particularly where the defendant has created a permanent source of injury, such as
the erection of a building to the nuisance of the claimant’s lights or to the obstruc-
tion of his right of way, or has wrongfully taken a conveyance of land to defeat the
claimant’s rights: in such a case the court orders him to restore the claimant to his
right by removing the offending building or reversing the conveyance. In all such
cases, breach of the court’s order is a contempt of court and may be punished as
such.

28-02 Torts of all kinds may be restrained by injunction where “just or conveni-
ent” The power to grant an injunction is now possessed by all divisions of the
High Court and also by the county court in cases falling within its jurisdiction.2
Injunctions may be granted in all cases in which it appears to the court to be “just
or convenient” to do so, but these words do not confer an arbitrary discretion on
the court. Their effect is to enable the court to grant such injunctions as could
formerly have been granted by a court of equity.3 In an appropriate case, therefore,
an injunction may be granted in relation to any form of tortious conduct.4 The
breach of statutory obligations which are supported by criminal sanctions does not
give rise to a tortious claim unless the court considers that such was the intention
of Parliament5; where no such inference is drawn (and no other private wrong is
made out) the court may not grant an injunction to a private individual in respect
of the breach.6 In Burris v Azadani7 the Court of Appeal upheld an injunction impos-
ing an “exclusion zone” on the defendant to prevent repetition of his tortious harass-
ment of the claimant. It was acknowledged that the effect of the order was to forbid
certain lawful actions on the part of the defendant, namely his use of the highway.
But it was held that an injunction can be granted restraining conduct that is not itself

2 Senior Courts Act 1981 s.37(1); County Courts Act 1984 s.38. By the County Court Remedies
Regulations 2014 (SI 2014/982) the county court generally has no jurisdiction to grant a search
(Anton Piller) order but does now have jurisdiction to make a freezing (Mareva) injunction.
3 North London Railway v Great Northern Ry (1883) 11 Q.B.D. 30; South Carolina Insurance Co v
Assurantie Maatschappij de Zeven Provincien NV [1987] A.C. 24 HL; UL v BK [2013] EWHC 1735
(Fam); [2014] Fam. 35 at [14].
4 See, e.g. Saxby v Easterbrook (1878) 3 C.P.D. 339 (defamation); Egan v Egan [1975] Ch. 218 (as-
sault); Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] A.C. 731 (passing-off); X v Y [1988]
2 All E.R. 648 (breach of confidence); Coflexip SA v Scott Comex Seaway MS Ltd [2001] 1 All E.R.
952 (Note) (patent infringement); Secretary of State for Environment, Food and Rural Affairs v Meier
[2009] UKSC 11; [2009] 1 W.L.R. 2780; London (Mayor) v Hall [2010] EWCA Civ 817; [2011] 1
W.L.R. 504 (trespass to land); Brand v Berki [2014] EWHC 2979 (QB) (tort of harassment under
the Protection from Harassment Act 1997). In Bird v O’Neal [1960] A.C. 907 an injunction was
granted to restrain picketing which was being carried on with threats of intimidation. In Miller v
Jackson [1977] Q.B. 966 at 980, Lord Denning MR said that he did not know of a case where an
injunction had been granted to stop a negligent action.
5 Ch.8. For an example of an injunction being granted to restrain the tort of breach of statutory duty,
see Warder v Cooper [1970] 1 Ch. 495; cf. McCall v Abelesz [1976] Q.B. 585.
6 Thorne v British Broadcasting Corp [1967] 1 W.L.R. 1104; Gouriet v Union of Post Office Work-
ers [1978] A.C. 435; Lonhro Ltd v Shell Petroleum Co Ltd [1982] A.C. 173; RCA Corp v Pollard
[1983] 1 Ch. 135. See too the Australian decision in Smethurst v Commissioner of Police [2020]
HCA 14.
7 [1995] 1 W.L.R. 1372.

[2154]
 INTRODUCTION

tortious (or otherwise unlawful), if such an order is necessary to prevent a tort.8 This
has since been extended to cover cases concerned with likely breaches by third
parties. Thus holders of intellectual property rights may sue internet service provid-
ers to force blocking of websites where this is necessary to prevent infringement
of their rights, not by the providers, but by the persons operating the websites.9
Although under the general law of tort no injunction can be granted in the 28-03
absence of some tortious right of action in the claimant,10 there are two exceptions.
First, a statutory body or office-holder may obtain an injunction to prevent unjusti-
fied interference with the performance of its (or his) functions.11 Secondly, it is now
clear that the infringement of the claimant’s human rights can give adequate ground
for an injunction even if not otherwise wrongful.12 Most of the decisions tend to
concern art.8 of the European Convention on Human Rights (the right to privacy)13
or art.2 (the right to life).14 There are further rights vested in public authorities to
obtain injunctions respecting crimes or matters affecting the public generally;15 but
these are a matter of public law rather than tort, and are not discussed further here.

Injunction against whom? An injunction may be granted on principle against 28-04

anyone subject to the jurisdiction of the court. It is not however the practice to grant
an order against a minor who has no earnings from which a fine for disobedience
can be paid and who is too young to be sent to prison; nor yet generally against a
person whose mental incapacity means that he is incapable of understanding the
order.16 It is not absolutely necessary to identify the defendant by name or even

8 See too Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] 4 W.L.R. 29 at
[111]–[112].
9 Cartier International AG v British Sky Broadcasting Ltd [2016] EWCA Civ 658; [2017] 1 All E.R.
700. See S. Gee, “The jurisdiction to grant injunctions against innocent third parties, the internet and
Cartier v British Telecommunications Plc in the Supreme Court” (2018) 40 E.I.P.R. 571.
10 See, e.g. Day v Brownrigg (1878) 10 Ch. D. 294 (naming suburban villa identically with grander
neighbouring property, with concomitant confusion and injury to amour propre: no injunction, since
no right infringed). See generally on this, A. Tettenborn “Injunctions Without Damages” (1987) 38
N.I.L.Q. 118.
11 See, e.g. Broadmoor Hospital Authority v R. [2000] Q.B. 775 CA (injunction granted to hospital
authority to support performance of its statutory duty); also Re Oriental Credit Ltd [1988] Ch. 204
(company liquidator).
12 Venables v News Group Newspapers Ltd [2001] Fam. 430 put the point beyond doubt (child murderer
granted new identity, with attendant injunctions, on the basis of the right to life under art.2).
13 Re KT [2004] EWHC 3428 (Fam) (allegations in open court of pederasty); Re Guardian News &
Media Ltd [2010] UKSC 1; [2010] 2 A.C. 697 (non-secret allegations of terrorist involvement: would
harm subject’s engagement with community).
14 As in Venables v News Group Newspapers Ltd [2001] Fam. 430, above; also Venables v News Group
Newspapers Ltd, unreported, 30 July 2010 QBD (same person allowed to suppress information about
(new) name under which convicted in open court on child pornography charges after release). cf.
Mills v News Group Newspapers Ltd [2001] E.M.L.R. 41 (no sufficient threat shown to prevent
disclosure of Heather Mills’ address).
15 These include the Attorney General’s power, either on his own initiative or in a relator action, to seek
an injunction to uphold the public interest (e.g. Gouriet v Union of Post Office Workers [1978] A.C.
435; and Att-Gen v Harris [1961] 1 Q.B. 74); and those of local authorities, which under s.222 of
the Local Government Act can obtain injunctions for the benefit of the locality (e.g. Stoke-on-Trent
BC v B & Q (Retail) Ltd [1984] A.C. 754; Runnymede BC v Ball [1986] 1 W.L.R. 353; Birmingham
City Council v Afsar [2020] EWHC 864 (QB); [2020] E.L.R. 341). Other specific powers allow
injunctive relief in favour of public authorities in such matters as breaches of trading standards, noise
pollution, unlawful discrimination and anti-social behaviour. See D. Bean, Injunctions, 13th ed
(2018), paras 4-42–4-44; 4-58 and 4-65–4-69.
16 Wookey v Wookey [1991] Fam. 121.

[2155]
 INJUNCTIONS

designation. An order may thus be made against representatives of an unincorpo-

rated association, or of other groups whose members have the same interest, on
behalf of all members of that association or group, so that a breach of the injunc-
tion will render the representatives liable for contempt.17 In Bloomsbury Publish-
ing Group Plc v News Group Newspapers Ltd,18 it was confirmed that the jurisdic-
tion went further, and that an injunction could be granted against a person or persons
not named but merely described as those committing the wrongful act in question;
a jurisdiction now widely used in respect of unlawful protests and other activities.19
In addition injunctions may be expressly granted contra mundum, certainly where
human rights are engaged20 and probably elsewhere.21 It should also be noted that
even where not a person to whom an injunction is addressed, any person who
interferes with the due administration of justice by intentionally frustrating the
purpose of an injunction can be liable in contempt.22

28-05 Discretion of court The grant of an injunction, being an equitable remedy, is

always discretionary and this discretion belongs to the trial judge: an appellate court
may not substitute its own views on the merits of the case but may intervene only
“if the judge misdirected himself in law, took into account irrelevant matters or
failed to take into account relevant matters”.23 The principles governing the exercise
of the discretion differ according to the nature of the injunction sought. Where an
injunction is sought to restrain the continuation of a wrongful act which interferes
with the claimant’s rights and is prohibitory in substance as well as in form, then

17 Taff Vale Ry Co v Amalgamated Society of Railway Engineers [1901] A.C. 426; Greig v Insole [1978]
1 W.L.R. 302; Michaels (Furriers) Ltd v Askew (1983) 127 S.J. 597 CA; EMI Records v Kudhail
[1985] F.S.R. 36. See CPR r.19.6.
18 [2003] EWHC 1205; [2003] 1 W.L.R. 1633 (unknown persons threatening to publish pirated ver-
sions of Harry Potter book). The power is particularly useful against anonymous groups of
trespassers.
19 e.g. Hampshire Waste Services Ltd v Persons Intending to Trespass and/or Trespassing upon
Chineham Incinerator Site [2003] EWHC 1738 (Ch); [2004] Env. L.R. 9; Secretary of State for
Environment, Food and Rural Affairs v Meier [2009] UKSC 11; [2009] 1 W.L.R. 2780; Boyd v Ineos
Upstream Ltd [2019] EWCA Civ 515; [2019] 4 W.L.R. 100. More recently a more general order was
made against anyone contemplating climbing the Shard in the City. See Re King-Thompson [2019]
EWHC 2962 (QB); also RGCM Ltd v Lockwood [2019] EWHC 1937 (Ch). There is no injustice to
anyone in making such an order provided the description is sufficiently certain to identify those
included and those who are not. Note, however, the restrictions on such orders in Canada Goose UK
Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] 1 W.L.R. 2802. See generally J.
Seymour, “Injunctions Enjoining Non-Parties: Distinction without Difference” [2007] C.L.J. 605.
20 X (formerly known as Mary Bell) v O’Brien [2003] EWHC 1101 (Fam); [2003] E.M.L.R. 37; OPQ
v BJM [2011] EWHC 1059 (QB); [2011] E.M.L.R. 23; RXG v Ministry of Justice [2019] EWHC
2026 (QB); [2019] E.M.L.R. 25.
21 That such orders were possible was admitted in Ambrosiadou v Coward [2013] EWHC 58 (QB);
[2013] 2 F.C.R. 359. Such an order appears to have been made in Re King-Thompson [2019] EWHC
2962 (QB) (general order against climbing the Shard in the City), and was definitely made in Vastint
Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch); [2019] 4 W.L.R. 2.
22 Z Ltd v A-Z [1982] Q.B. 558 (freezing injunction); Att Gen v Times Newspapers Ltd [1992] 1 A.C.
191; Att Gen v Punch Ltd [2002] UKHL 50; [2003] 1 A.C. 1046. It has been held at first instance
that such contempt proceedings against third parties can be brought only in respect of interim, and
not final, injunctions: Jockey Club Ltd v Buffham [2002] EWHC 1866 (QB); [2003] Q.B. 462. But
such a curious hobble on the court’s power seems, with respect, doubtful: compare the comments
of Lord Neuberger MR in Hutcheson v Popdog Ltd (News Group Newspapers Ltd, third party)
[2011] EWCA Civ 1580; [2012] 1 W.L.R. 782 at [26].
23 Duport Steels Ltd v Sirs [1980] 1 W.L.R. 142 at 171, per Lord Scarman. See also Lord Diplock at
163–164.

[2156]
 PROHIBITORY INJUNCTIONS

an injunction is fairly readily granted.24 The grant of a mandatory injunction, which

is an injunction in positive terms25 requiring the defendant to take some specific ac-
tion involving, typically, the carrying out of certain works, on the other hand, can
never be “as of course”26 and depends upon a number of factors in addition to those
which may affect the grant of prohibitory injunctions.27

2. PROHIBITORY INJUNCTIONS
The mere proof of a legal wrong done in the past is insufficient to entitle the 28-06
claimant to an injunction. The court must be satisfied that the interference with the
claimant’s right28 is continuing, as in many cases of nuisance and some of trespass,
or that it is likely to be repeated unless restrained.29 Furthermore, even if this is
done, the decision whether to grant an injunction remains essentially discretionary.30
Thus while in the case of substantial interference with the claimant’s rights there
should be a presumption in favour of injunctive relief, with the defendant having
to advance a case why it should not be available,31 it is no longer the case, if it ever
was,32 that an injunction can be had save in exceptional circumstances or on any

24 Coventry v Lawrence [2014] UKSC 13; [2014] A.C. 822 at [100] and [121] (Lord Neuberger, with
the apparent agreement of Lords Carnwath and Mance). At one time it was regularly said in the case
of a prohibitory order that the claimant got his injunction “as of course” unless there were exceptional
circumstances (Morris v Redland Bricks Ltd [1970] A.C. 652 at 664, per Lord Upjohn; Pride of
Derby etc Ltd v British Celanese Ltd [1953] 1 Ch. 149 at 181, per Lord Evershed MR; [1953] 1 Ch.
149 at 194, per Romer LJ). But today this is too favourable to the claimant, since it lays insuf-
ficient stress on the essentially discretionary nature of the whole exercise of deciding whether to grant
an injunction. It should be noted that even if an injunction is granted, its operation may be suspended
for a time where appropriate (see e.g. Morris v Redland Bricks Ltd [1970] A.C. 652 at 664, per Lord
Upjohn; Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 W.L.R. 411; Coventry v Lawrence
(No 2) [2014] UKSC 46; [2015] A.C. 106 in which the injunction prohibiting the defendant’s use
of a race track was suspended until such time as the claimants’ home was fit for habitation after it
had been damaged by fire). This was particularly true where the defendant was a public utility: see,
e.g. Price’s Patent Candle Co v London CC [1908] 2 Ch. 526; Pride of Derby etc Ltd v British
Celanese Ltd [1953] Ch. 149; and also A. Ogus & G. Richardson, “Economics and the Environment:
A Study of Private Nuisance” [1977] C.L.J. 284, 311–314.
25 Jackson v Normandy Brick Co [1899] 1 Ch. 438.
26 Morris v Redland Bricks Ltd [1970] A.C. 652 at 665, per Lord Upjohn.
27 See paras 28-14 to 28-19.
28 Actual damage is not necessary so long as an actionable interference with proprietary rights is shown:
Jones v Llanrwst Urban DC [1911] 1 Ch. 393; Sevenoaks DC v Pattullo & Vinson Ltd [1984] Ch.
211.
29 Proctor v Bayley (1889) 42 Ch. D. 390. In Weller v Associated Newspapers Ltd [2015] EWCA Civ
1176; [2016] 1 W.L.R. 1541 a prohibitory injunction preventing the publication of photographs was
ordered in a situation where the defendant had said that they would not publish the photographs again
but refused to give an undertaking to the court to that effect.
30 “The court’s power to award damages in lieu of an injunction involves a classic exercise of discre-
tion, which should not, as a matter of principle, be fettered”: Lord Neuberger in Coventry v Lawrence
[2014] UKSC 13; [2014] A.C. 822 at [120]: see too at [170] (Lord Clarke).
31 See Coventry v Lawrence [2014] UKSC 13; [2014] A.C. 822 at [100] and [121] (Lord Neuberger,
with whom Lords Carnwath and Mance seemingly agreed). See too the earlier Regan v Paul Proper-
ties DPF (No.1) Ltd [2006] EWCA Civ 1391; [2007] Ch. 135, which to that extent at least seems
to remain good law.
32 As had been suggested by a line of authority prior to the Supreme Court’s decision in Coventry: e.g.
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, 323 (A.L. Smith LJ); and Regan v
Paul Properties DPF (No.1) Ltd [2006] EWCA Civ 1391; [2007] Ch. 135 at [70]–[73] (Mummery
LJ).

[2157]
 INJUNCTIONS

similar basis.33 Nor can the matter be reduced to simple rules.34 As Millett LJ put
it in Jaggard v Sawyer35:
“Reported cases are merely illustrations of circumstances in which particular judges have
exercised their discretion, in some cases by granting an injunction, and in others by award-
ing damages instead. Since they are all cases on the exercise of a discretion, none of them
is a binding authority on how the discretion should be exercised. The most that any of
them can demonstrate is that in similar circumstances it would not be wrong to exercise
the discretion in the same way. But it does not follow that it would be wrong to exercise
it differently.”

28-07 Claimant’s conduct The grant of an injunction being discretionary, no complete

or exhaustive list of relevant factors can be drawn up. However, the claimant’s own
conduct is clearly a relevant factor, so that condonation of the acts complained of,
at least until withdrawn, will deprive him of this remedy.36 Thus, where the defend-
ants had given notice to the claimants—a canal company—of their intention to lay
pipes for the purposes of drawing water from the canal and the claimants’ agents
had superintended the laying of the pipes and were aware of the expense incurred
by the defendants, it was held that no injunction to restrain the defendants from
continuing to draw water would be granted, even though the defendants were un-
able to make out a defence of leave and licence to an action at law on the same
facts.37 In Armstrong v Sheppard & Short Ltd,38 the defendants had entered upon a
small strip of land owned by the claimant and had laid a sewer under its surface.
The claimant subsequently claimed damages for trespass and an injunction to
restrain the further discharge of effluent through or under his land, and in evidence
he denied that he had ever given the defendants permission to construct the sewer.
On this he was disbelieved, but it was accepted that when he gave his assent to the
work he was unaware of his own proprietary interest in the land in question. It was
held that the defendants had no defence to an action for damages for trespass,39 but
that no injunction would issue, partly at least because the claimant had misled the
defendants and had attempted to mislead the court.

33 “[A]n approach which involves damages being awarded only in ‘very exceptional circumstances’
[is] simply wrong in principle”: Coventry v Lawrence [2014] UKSC 13; [2014] A.C. 822 at [119]
(Lord Neuberger). See too Lord Clarke at [171]; also the discussions in the earlier nuisance cases
of Colls v Home & Colonial Stores Ltd [1904] A.C. 179, 193, 212–213 (Lords M’Naghten and
Lindley); and Fishenden v Higgs & Hill Ltd (1935) 153 L.T. 128, 139 (Lord Hanworth MR), largely
approved of in Coventry’s case.
34 Compare A.L. Smith LJ’s nineteenth-century suggestion, now discountenanced, that to avoid an
injunction it generally had to be shown, cumulatively, that (1) the injury to the claimant’s rights was
small; (2) that any injury could be estimated in money; (3) that any injury could be made good by a
small money payment; and (4) that it would be oppressive to grant specific relief (Shelfer v City of
London Electric Lighting Co [1895] 1 Ch. 287, 322–323). At best this is now a working rule or
starting-point.
35 [1995] 1 W.L.R. 269, 288, approved by Lord Neuberger in Coventry v Lawrence [2014] UKSC 13;
[2014] A.C. 822 at [120].
36 Monson v Tussauds Ltd [1894] 1 Q.B. 671. There can be no consent or acquiescence if the claim-
ant is unaware of the defendant’s activities or even if he expressly purports to give his consent but
does so in ignorance of his own proprietary rights: Armstrong v Sheppard and Short Ltd [1959] 2
Q.B. 384 at 396, per Lord Evershed MR.
37 Rochdale Canal Co v King (1851) 2 Sim. (N.S.) 78; Wood v Sutcliffe (1851) 2 Sim. (N.S.) 163.
38 [1959] 2 Q.B. 384.
39 Nominal damages only were awarded.

[2158]
 PROHIBITORY INJUNCTIONS

Trivial harm Another ground upon which the issue of an injunction was refused 28-08
in Armstrong v Sheppard & Short Ltd was the triviality of the harm caused to the
claimant by the passage of effluent through the sewer under the surface of his land.40
That the triviality of the harm suffered by the claimant41 is in itself a ground for the
refusal of an injunction has been affirmed on more than one occasion.42 However,
it has also been held several times that for the claimant to be entitled to an injunc-
tion it is not necessary that the harm caused by the repetition or continuance of the
wrong should be substantial43; and indeed some 50 years ago it was said that “the
very fact that no harm is done is a reason for rather than against the granting of an
injunction: for if there is no damage done the damage recovered in the action will
be nominal and if the injunction is refused the result will be no more nor less than
a licence to continue the tort … in return for a nominal payment”.44 It is difficult
to see how the authorities on this matter can be reconciled.45 But it is suggested,
especially in the light of the decision in Coventry v Lawrence,46 that today the bet-
ter view is that triviality of harm is a factor tending to militate against the grant of
a prohibitory injunction. On the other hand, this may depend on the conduct
involved, and in particular direct invasions of property may be subject to a special
principle, such that an injunction will be granted against even harmless incursions
unless good reason to the contrary is shown.47

Impossibility of compliance It is sometimes taken to be a reason for refusing an 28-09

injunction that compliance with it by the defendant would be impossible or illegal.

40 [1959] 2 Q.B. at 396–397, per Lord Evershed MR. His Lordship indicated that an award of dam-
ages under Lord Cairns’ Act (paras 27-128 to 27-133) might have been appropriate, but no claim
for such damages was made.
41 The court should also take account of the risks of harm which have not yet materialised: see, e.g.
Miller v Jackson [1977] Q.B. 966 at 986, where in his dissenting judgment Geoffrey Lane LJ took
account of the fact that the playing of cricket by the defendants had not only caused physical harm
to the claimant’s property but had also created a risk of personal injury. Lord Denning MR and
Cumming-Bruce LJ, however, thought that it was not unreasonable to expect the claimant and her
family to keep out of the garden while cricket was being played (respectively, at 981 and 989).
42 Goldsmid v Tunbridge Wells Improvement Commissioners (1866) L.R. 1 Ch. 349 at 354–355, per
Turner LJ; Llandudno Urban DC v Woods [1899] 2 Ch. 705; Behrens v Richards [1905] 2 Ch. 614.
43 John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P. & C.R. 104; Patel v WH Smith
(Eziot) Ltd [1987] 1 W.L.R. 853; Anchor Brewhouse Developments Ltd v Berkley House (Docklands
Developments) Ltd (1987) 38 B.L.R. 82.
44 Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 W.L.R. 411 at 413, per Stamp J cited with
approval in Patel v WH Smith (Eziot) Ltd [1987] 1 W.L.R. 853 at 860, per Balcombe LJ. The learned
judge nevertheless suspended the operation of the injunction which was to restrain the defendants
from allowing the jib of their crane to enter the claimant’s air space, for long enough to enable them
to complete their building operations. In Charrington v Simons & Co Ltd [1971] 1 W.L.R. 598 the
Court of Appeal expressed its reservations on this aspect of Stamp J.’s decision; and in John
Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P. & C.R. 104; and in Jaggard v Sawyer
[1995] 1 W.L.R. 269 CA, it was treated as wrong.
45 The suggestion that the triviality of the harm caused is a reason for not granting an injunction except
where the consequences of the wrongful act, however slight, will endure indefinitely (see, e.g. Att
Gen v Sheffield Gas Consumer Co (1852) 3 De G.M. & G. 304 at 314–315, per Lord Cranworth LJ)
is inconsistent with, e.g. Armstrong v Sheppard & Short Ltd above and Woollerton & Wilson Ltd v
Richard Costain Ltd above.
46 [2014] UKSC 13; [2014] A.C. 822.
47 Older authority certainly said as much: see e.g. Balcombe LJ in Patel v W.H. Smith (Eziot) Ltd [1987]
1 W.L.R. 853, 858. This was cited and followed without criticism in at least two post-Coventry cases,
Canary Wharf Investments Ltd v Brewer [2018] EWHC 1760 (QB); and Fitzwilliam Land Co v
Cheesman [2018] EWHC 3139 (QB) at [42].

[2159]
 INJUNCTIONS

In the context of prohibitory injunctions, however, there is little authority to sup-

port this,48 if only because inaction in the nature of things is rarely impossible, and
it is undoubtedly the case that a prohibitory injunction will not be refused merely
because compliance will put the defendant to trouble or expense. In Pride of Derby
etc Ltd v British Celanese Ltd,49 for example, serious river pollution was caused by
the discharge into a river by the defendant local authority of insufficiently treated
sewage. The Court of Appeal held that the inadequacy of the defendants’ plant to
treat the current level of sewage, which was the result of an increase in the local
population, and the alleged impossibility of avoiding the insufficiently treated
discharge were not grounds for refusing an injunction. The solution was to issue the
injunction and to suspend its operation for a time so as to give the defendant the
opportunity to carry out the necessary expansion of its sewerage system.50

28-10 Uncertainty It is well-established, albeit that there have been relatively few case
law examples, that a prohibitory injunction (as well as a mandatory injunction)51
must be sufficiently clear and precise so that the defendant knows which acts are
prohibited and which are not. For example, in OPO v Rhodes,52 the Supreme Court
overturned the grant of an interim prohibitory injunction restraining the defendant
from publishing a book about his life, including the sexual abuse he had suffered
as a child, using “graphic” language. The Supreme Court held that there was no
arguable case that publication of the book would constitute the actionable tort of
intentionally inflicting physical or psychological harm (i.e. the tort applied in
Wilkinson v Downton).53 But the Supreme Court also decided that the form of the
interim injunction granted was objectionable because what is meant by “graphic”,
even as amplified by the Court of Appeal, was too imprecise and uncertain. In the
words of Lady Hale and Lord Toulson, giving the leading judgment, “Any injunc-
tion must be framed in terms sufficiently specific to leave no uncertainty about what
the affected person is or is not allowed to do”.54

28-11 Relevance of the public interest55 It might seem to follow a fortiori that if
economic consequences to the defendant do not justify the refusal of an injunc-
tion, so also the social and economic effects on third parties should be ignored, but
until recently authority was unclear. Nineteenth-century cases suggested both the
relevance56 and irrelevance57 of third party effects; and this continued into the
twentieth century. The Court of Appeal in Shelfer v City of London Electric Light-

48 But see Earl of Harrington v Derby Corp [1905] 1 Ch. 205 at 220, per Buckley J; Pride of Derby
etc Ltd v British Celanese Ltd [1953] Ch. 149 at 181, per Evershed MR.
49 [1953] Ch. 149.
50 On suspended injunctions, see para.28-05 fn.24.
51 See para.28-19.
52 [2015] UKSC 32; [2016] A.C. 219.
53 [1897] 2 Q.B. 57.
54 [2015] UKSC 32; [2016] A.C. 219 at [79]. The certainty of the defendant’s duty under the injunc-
tion is also relevant in enforcement proceedings: a person should not be liable to a penalty save where
it was made sufficiently precise what he was, or was not, to do in order not to incur it. See Cuadrilla
Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] 4 W.L.R. 29.
55 J. McLaren, “The Common Law Nuisance Action and the Environmental Battle” (1972) 10 Osgoode
Hall L.J. 505, especially at 552–556.
56 e.g. Wood v Sutcliffe (1851) 2 Sim. (N.S.) 163; Raphael v Thames Valley Ry Co (1866) L.R. 2 Eq.
37 at 46.
57 e.g. Att Gen v Birmingham BC (1858) 4 K. & J. 528 at 539–540.

[2160]
 PROHIBITORY INJUNCTIONS

ing Co58 came down firmly against letting the interests of third parties or the public
override the private interests of the claimant. By contrast, in Miller v Jackson59 Lord
Denning MR and Cumming-Bruce LJ, relying on the pre-Shelfer cases, held that
the courts were under a duty to consider the interests of the public 60 ; but
subsequently, in Kennaway v Thompson61 a different division of the Court of Ap-
peal returned to Shelfer and refused to follow the approach taken in Miller v
Jackson. However, despite cases such as this it was never seriously accepted that
the public interest was entirely irrelevant62; and today it is clear that, at least in
principle, account may be taken of third party effects. In Coventry v Lawrence,63 a
nuisance case where the issue was discussed at length, Lord Neuberger had no
doubt whatever on the point:
“I find it hard to see how there could be any circumstances in which it arose and could
not, as a matter of law, be a relevant factor. Of course, it is very easy to think of
circumstances in which it might arise but did not begin to justify the court refusing, or,
as the case may be, deciding, to award an injunction if it was otherwise minded to do so.
But that is not the point. The fact that a defendant’s business may have to shut down if
an injunction is granted should, it seems to me, obviously be a relevant fact, and it is hard
to see why relevance should not extend to the fact that a number of the defendant’s
employees would lose their livelihood, although in many cases that may well not be suf-
ficient to justify the refusal of an injunction. Equally, I do not see why the court should
not be entitled to have regard to the fact that many other neighbours in addition to the
claimant are badly affected by the nuisance as a factor in favour of granting an
injunction.”64

Human rights Where a claimant seeks an injunction to prevent what would 28-12
otherwise be a clear tort committed against it, it seems clear that in so far as the
defendant’s human rights would be engaged, that may be relevant to the decision
whether to grant the injunction.65 The point normally arises in connection with
defamation and art.10 of the European Convention on Human Rights,66 but it is

58 [1895] 1 Ch. 287.

59 [1977] Q.B. 966 at 981 and 988.
60 “Courts of equity will not ordinarily and without special necessity interfere by injunction where the
injunction will have the effect of very materially injuring the rights of third persons not before the
court”: [1977] Q.B. 966 at 988 (Cumming-Bruce LJ). See also Tetley v Chitty [1986] 1 All E.R. 663
at 674, per McNeill J, although in that case an injunction was granted.
61 [1981] Q.B. 88. The terms of the injunction granted in this case were very detailed. See similarly
Watson v Croft Promosport Ltd [2009] EWCA Civ 15; [2009] 3 All E.R. 249 in which an injunc-
tion was granted to restrain a nuisance constituted by noise from the defendant’s car racing circuit.
The injunction prohibited racing for more than 40 days a year. See also Rosling v Pinnegar (1987)
53 P. & C.R. 124.
62 For an obvious example, see Dennis v Ministry of Defence [2003] EWHC 793 (QB); [2003] Env.
L.R. 34 (understandably, no injunction against operations from a large and noisy Lincolnshire RAF
base, given the effects of such an order on the patent public interest in effective defence).
63 [2014] UKSC 13; [2014] A.C. 822.
64 [2014] UKSC 13; [2014] A.C. 822 at [124]. See too Lord Carnwath at [240] onwards, where the
arguments are analysed in detail. Earlier, see cases such as Wheeler v JJ Saunders Ltd [1996] Ch.
19, 35 (Peter Gibson J).
65 London (Mayor) v Hall [2010] EWCA Civ 817; [2011] 1 W.L.R. 504 at [42] (Neuberger MR);
London (Mayor Commonalty and Citizens) v Samede [2012] EWCA Civ 160; [2012] 2 All E.R.
1039. For guidance on the matter, see Bromley LBC v Persons Unknown [2020] EWCA Civ 12;
[2020] H.R.L.R. 6 (which also makes it clear that public authorities must take account of duties under
the Equality Act 2010 when seeking injunctions).
66 See, e.g. Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462; [2005] Q.B. 972. See further
para.21-03.

[2161]
 INJUNCTIONS

entirely general.67 However, the presumption is very strong that property rights and
rights existing to protect the public should be enforced.68

28-13 Secrecy and proceedings for injunctions Where celebrities or others seek
injunctions to prevent dissemination of private information, it is fairly com-
monplace, for obvious reasons, for the court to order that the claimant or the defend-
ant or both must not be named.69 In PJS v News Group Newspapers70 the Supreme
Court held that an interim injunction preventing publication of a story about the
private life of the claimant, or the naming of the claimant, should continue—
because the injunction still had some purpose—even though the story had been
published, along with the name of the claimant, in the USA, Canada and Scotland
and on social media. In some other cases, concerning so-called “super-
injunctions”,71 the court very exceptionally may go further and order that the fact
that the proceedings have taken place and that an injunction has been granted should
themselves not be publicised.72

3. MANDATORY INJUNCTIONS
28-14 A mandatory injunction is never issued “as of course” and is always at the discre-
tion of the court. While emphasising this, however, in Morris v Redland Bricks Ltd73
Lord Upjohn found it possible to state certain general principles for the exercise by
the court of its discretion.74

67 London (Mayor) v Hall [2010] EWCA Civ 817; [2011] 1 W.L.R. 504, above. See too Tabernacle v
Secretary of State for Defence [2009] EWCA Civ 23.
68 See, e.g. London (Mayor) v Hall [2010] EWCA Civ 817; [2011] 1 W.L.R. 504, above (protesters);
London (Mayor Commonalty and Citizens) v Samede [2012] EWCA Civ 160; [2012] 2 All E.R. 1039
(protesters outside St Paul’s cathedral); West Sussex CC v Persons Unknown [2013] EWHC 4024
(QB) (protesters on highway).
69 The cases are legion. See, e.g. JIH v News Group Newspapers Ltd [2011] EWCA Civ 42; [2011] 1
W.L.R. 1645; ETK v News Group Newspapers Ltd [2011] EWCA Civ 439; [2011] 1 W.L.R. 1827;
CTB v News Group Newspapers Ltd [2011] EWHC 1232 (QB).
70 [2016] UKSC 26; [2016] A.C. 1081. See further para.26-56.
71 See generally Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunc-
tions and Open Justice (chaired by Lord Neuberger MR, 2010). In that report there was awareness
of only four such injunctions having been granted. This may well have been optimistic at the time
(James Robinson in an article in The Guardian for 13 October 2009 referred to that paper alone hav-
ing been served with some twelve such orders that year). But it seems numbers are now very much
down: N. Wilcox, “Last gasp of the super-injunction” (2014) 25 Ent. L.R. 13 (summarising and com-
menting on the 2013 statistics supplied by the MoJ on the subject). See further para.26-57.
72 Donald v Ntuli [2010] EWCA Civ 1276; [2011] 1 W.L.R. 294 at [43]. An example is an injunction
in draconian terms issued in 2010 to prevent reporting of developments where a British couple were
kidnapped by Somali pirates, on the basis that any media coverage at all, even of the proceedings,
might hamper negotiations and put their lives at risk. After their release the injunction was discharged
and the story of the affair was widely aired on the Web: e.g. http://www.bbc.co.uk/news/mobile/uk-
11752027. Another is RJW v Guardian News & Media Ltd, unreported, 11 September 2009, suppress-
ing allegations of toxic dumping in Africa by Trafigura Beheer BV and also the existence of the
injunction itself (the matter was later publicised in Parliament by Paul Farrelly MP on 12 October
2009).
73 [1970] A.C. 652 at 665–666. The other members of the House of Lords present all agreed with Lord
Upjohn’s speech.
74 As with prohibitory injunctions—see para.28-07—a mandatory injunction may be refused because
of the claimant’s own conduct; see, e.g. Tollemache & Cobbold Breweries Ltd v Reynolds (1983)
268 E.G. 52, where a mandatory injunction was refused on the ground, inter alia, that the party seek-

[2162]
 MANDATORY INJUNCTIONS

(i) Probability of serious damage A mandatory injunction can only be granted 28-15
where the claimant shows a very strong probability that grave damage will accrue
to him in the future if the intervention of the court is denied. The power to issue
mandatory injunctions, though it should be exercised unhesitatingly in a proper
case, must be used sparingly and with caution and only in cases “in which extreme,
or at all events, very serious damage” will ensue if the injunction is withheld.75

(ii) Damages not a sufficient remedy The damage which will follow a refusal 28-16
of an injunction must be such that damages awarded in respect of it would not be
a sufficient remedy. This, as Lord Upjohn pointed out, is no more than the applica-
tion of the general principle of equity.76

(iii) Compliance illegal or cost of compliance excessive Relief will be refused 28-17
where compliance by the defendant would be illegal.77 Moreover, in contrast to
prohibitory injunction cases, the cost to the defendant of compliance with a manda-
tory injunction must be taken into account. If, for example, the defendant has
erected a building which obstructs the claimant’s ancient lights, then the court will
take into consideration “not only the injury to the [claimant] but also the amount
which has been laid down by the defendant” before it will issue an injunction requir-
ing the building to be removed. 78 In Morris v Redland Bricks Ltd itself the
defendant’s excavations of earth and clay had led to a withdrawal of support from
the claimants’ lands, some of which had already fallen away when the action was
brought, and further subsidence was likely. The county court judge had granted a
mandatory injunction ordering the defendants to restore support to the claimants’
land, and one of the grounds upon which this part of his judgment was reversed was
that the work required would have cost approximately £29,000, a sum out of all
proportion to the value of the land which was at risk.79
Such considerations have no place, however, if the defendant has acted wantonly 28-18
or unreasonably in relation to the claimant’s rights or has tried to steal a march on
him or on the court, and in such a case the defendant may be ordered to do posi-
tive work to restore the status quo even if the expense to him is out of all propor-
tion to the corresponding advantage which would accrue to the claimant. Daniel v
Ferguson80 is a clear case. Immediately upon receiving notice of a motion for an

ing it had demonstrated “an attitude in regard to this litigation of extreme pettiness”, per Ackner LJ
at 56.
75 Durell v Pritchard (1865) 1 Ch. App. 244. See also Leakey v National Trust for Places of Historic
Interest and Natural Beauty [1978] Q.B. 849; affirmed on other grounds [1980] Q.B. 485, where a
mandatory injunction in a case involving falls of land from the defendant’s property was refused on
the ground that the remedial action already taken by the defendant was satisfactory; cf. Kelsen v
Imperial Tobacco Co [1957] 2 Q.B. 334.
76 See para.28-01.
77 Harold Stephen Co v Post Office [1977] 1 W.L.R. 1172 where an injunction was refused on the
ground, inter alia, that compliance would require the defendant Post Office to discriminate unlaw-
fully between different consumers and to aid and abet its employees in the commission by them of
criminal offences.
78 Smith v Smith (1875) L.R. 20 Eq. 500 at 505, per Jessel MR; Colls v Home & Colonial Stores Ltd
[1904] A.C. 179 at 212, per Lord Lindley. See also Att Gen v Colchester Corp [1955] 2 Q.B. 207.
79 [1970] A.C. 652 at 667.
80 [1891] 2 Ch. 27; Krehl v Burrell (1879) 11 Ch. D. 146; Woodhouse v Newry Navigation Co [1898]
1 I.R. 161; Colls v Home and Colonial Stores Ltd [1904] A.C. 179 at 193, per Lord MacNaghten;
Pugh v Howells (1984) 48 P. & C.R. 298 CA; Ottercroft Ltd v Scandia Care Ltd [2016] EWCA Civ

[2163]
 INJUNCTIONS

injunction to restrain him from building so as to obstruct the claimant’s lights the
defendant engaged extra men and proceeded as rapidly as possible with the build-
ing of a wall. The Court of Appeal held that even though the claimant’s right to light
had not yet been established an order for the removal of the wall must issue at once;
its erection had been an attempt to anticipate the order of the court.

28-19 (iv) Order must be precise If, in the exercise of its discretion the court decides
that the case is a proper one for the issue of a mandatory injunction, then the court
must be careful to see that the defendant knows exactly what he has to do, not just
as a matter of law but as a matter of fact, so that in carrying out the order of the court
he can give his contractors the proper instructions.81 In Morris v Redland Bricks Ltd,
the injunction issued by the judge had done no more than require the defendants “to
take all necessary steps to restore the support” to the claimants’ land within a certain
period of time. It thus offended against this principle and could not be allowed to
stand.

4. ACTION QUIA TIMET

28-20 As a general rule, it is premature for the claimant to come to the court for an
injunction before a complete cause of action has accrued, for instance, in a case
where damage is the gist of the action, before damage has actually occurred.
Nevertheless, the court must in certain cases issue an injunction quia timet to
restrain conduct which, if allowed to go forward, would almost certainly lead to
substantial damage to the claimant. Thus, for example, where the members of a
trade union had begun to picket the claimant’s hotel in order to prevent the delivery
to it of fuel oil, but had not yet succeeded in interfering with deliveries to such an
extent that the picketing amounted to a nuisance, an injunction to restrain further
picketing was issued because there was no doubt that the defendants, or some of
them, did threaten or intend to interfere with the delivery of the oil, if necessary for
months, by placing pickets for the purpose of sustaining the embargo.82
28-21 The power to grant a quia timet injunction is undoubted,83 and extends to manda-
tory as well as prohibitory injunctions, but it is exercised sparingly84 and only when

867. See too Esso Petroleum Co Ltd v Kingswood Motors (Addlestone) Ltd [1974] Q.B. 142 (defend-
ant induced breach of contract by causing garage to be conveyed to it to defeat tie: order to re-
convey land transferred).
81 Att Gen v Staffordshire CC [1905] 1 Ch. 336 at 342, per Joyce J; Kennard v Cory Bros & Co Ltd
[1922] 1 Ch. 265 at 274, per Sargant J (affirmed [1922] 2 Ch. 1); Fishenden v Higgs & Hill Ltd
(1935) 153 L.T. 128 at 142, per Maugham LJ.
82 Torquay Hotel Co Ltd v Cousins [1969] 2 Ch. 106 at 120, per Stamp J (affirmed, ibid.).
83 See, e.g. Earl of Ripon v Hobart (1843) 3 M. & K. 169; Fletcher v Bealey (1884) 28 Ch. D. 688;
Att Gen v Manchester Corp [1893] 2 Ch. 87; White v Mellin [1895] A.C. 154; Cowper v Laidler
[1903] 2 Ch. 337; Att Gen v Nottingham Corp [1904] 1 Ch. 673; British Railway Traffic & Electric
Co Ltd v CRC Co Ltd [1922] 2 K.B. 260; Morris v Redland Bricks Ltd [1970] A.C. 652 at 665, per
Lord Upjohn.
84 Even in Litchfield-Speer v Queen Anne’s Gate Syndicate (No.2) Ltd [1919] 1 Ch. 407, where there
was a threatened obstruction of the claimant’s ancient lights and P.O. Lawrence J considered that
the case for a quia timet injunction had been made out, his Lordship preferred to make a declara-
tion to the effect that the defendants were not entitled to build so as to obstruct the claimant’s light,
with liberty to apply for an injunction should it become necessary. In Bridlington Relay Ltd v
Yorkshire Electricity Board [1965] Ch. 436 at 445, Buckley J held that it would be wrong for the
court to grant a quia timet injunction to compel the defendant to do something which it appeared to
be willing to do without the intervention of the court.

[2164]
 ACTION QUIA TIMET

the possibility of damage is very high.85 It is also commonly stated that the dam-
age must be imminent. Thus in Lemos v Kennedy Leigh Development Co Ltd86 the
claimants, fearing damage to their property from the roots of trees growing on
adjoining land, began proceedings in 1959. The evidence showed that damage
might be expected by 1962, but the Court of Appeal held that there was not suf-
ficient imminence of damage to justify an action. In Hooper v Rogers,87 on the other
hand, where there was a “real possibility” that damage would result to the claimant’s
property “in time”,88 it was held that a quia timet mandatory injunction could have
been issued; and Russell LJ said that the use of the word “imminent” indicated no
more than that the injunction must not be granted prematurely.89 It is respectfully
submitted that this leaves the matter completely open as, indeed, his Lordship seems
to have intended, for he also said that the degree of probability of future damage
is not an absolute standard: “what is to be aimed at is justice between the parties,
having regard to all the relevant circumstances”.90 This decision of the Court of Ap-
peal may indicate that quia timet injunctions will be more readily granted than in
the past, but the case is difficult to reconcile with Lemos v Kennedy Leigh Develop-
ment Co Ltd91 and, moreover, the decision that an injunction might have been
granted was necessary only as the foundation of an award of damages under Lord
Cairns’ Act.92 No injunction was actually issued.
In the cases mentioned above no complete cause of action had, so far as mate- 28-22
rial, accrued to the claimant when he began his proceedings, and for this reason the
actions are classed as quia timet. In Morris v Redland Bricks Ltd,93 however, the
defendants’ excavations had already caused some subsidence of the claimants’ land
and, accordingly, a complete cause of action had already accrued to them. Even so,
in Lord Upjohn’s opinion, the claim for a mandatory injunction was quia timet
because, damages having been awarded for the subsidence which had already oc-
curred and an injunction having been issued to restrain the defendants from com-
mitting further tortious acts, the claimants’ remedies for the legal wrongs which had
already taken place were exhausted.94 It is true that in a case of withdrawal of sup-
port from land a fresh cause of action accrues with each new subsidence95 and
thus—as Lord Upjohn pointed out—the claimants could take further proceedings
if further subsidence were to occur. Nevertheless, if an action is to be classed as quia
timet whenever the claimant has recovered redress for such damage as he has
already suffered, even if only in the same proceedings as those in which the manda-
tory injunction is claimed, it is difficult to see that, exceptional cases apart, a claim
for a mandatory injunction can ever be other than quia timet.96 It is submitted,

85 See the cases cited in fn.75.

86 (1961) 105 S.J. 178; (1960) 175 E.G. 1199 CA. See also Fletcher v Bealey (1885) L.R. 28 Ch. D.
688.
87 [1975] Ch. 43.
88 [1975] Ch. 43 at 50, per Russell LJ.
89 [1975] Ch. 43 at 50, per Russell LJ.
90 [1975] Ch. 43 at 50, per Russell LJ.
91 This case was cited by counsel in Hooper v Rogers, but is not referred to in the judgments.
92 See paras 27-128 to 27-133.
93 [1970] A.C. 652.
94 [1970] A.C. 652 at 664 and 665.
95 Darley Main Colliery v Mitchell (1886) 11 App. Cas. 127.
96 Although Lord Upjohn gave an example of a claim for a mandatory injunction which would not, in
his Lordship’s opinion, be quia timet ([1970] A.C. at 665), it is not clear how the case put differs
materially from that actually before the House. The mandatory injunction issued in Esso Petroleum

[2165]
 INJUNCTIONS

therefore, that while nothing of substance should turn on this issue of classifica-
tion, Lord Upjohn’s description of the mandatory injunction claimed as quia timet
was out of line with the traditional approach and for this reason is probably best
disregarded.97

5. INTERIM INJUNCTIONS98

(a) American Cyanamid

28-23 Injunctions of all kinds, including mandatory injunctions,99 may be granted on
an interlocutory application. Such an application is made when, of course, the legal
validity of the claim or the factual basis for it may be uncertain and, as Lord Diplock
said in the leading case of American Cyanamid Co v Ethicon Ltd100:
“it was to mitigate the risk of injustice to the [claimant] during the period before that
uncertainty could be resolved that the practice arose of granting him relief by way of
interlocutory injunction … The object of the interlocutory injunction is to protect the
[claimant] against injury by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty were resolved in his
favour at the trial.”

The granting of such an injunction is a matter of discretion, but the courts have not
been slow to lay down guidelines as to how it should be exercised. Until the
American Cyanamid case, the general opinion, restated by the House of Lords in
JT Stratford & Son Ltd v Lindley,101 was that the claimant had to establish a prima
facie case.102 In the American Cyanamid case, Lord Diplock, with the concurrence
of the other Law Lords, denied that there was any such rule and held that, provided
there was a “serious question” to be tried, the matter should be decided on the bal-
ance of convenience103 and the following principles should be applied in determin-
ing which way the balance of convenience lies.104
28-24 First, the court should consider the adequacy of the claimant’s and defendant’s
respective remedies in damages either at the trial, if the injunction be refused and

Co Ltd v Kingswood Motors (Addlestone) Ltd [1974] Q.B. 142 was not quia timet but the case was
of an unusual character.
97 J. Jolowicz, “Damages in Equity—A Study of Lord Cairns’ Act” [1975] C.L.J. 224, 244–245.
98 Although in the past these have usually been referred to as “interlocutory injunctions”, the term
preferred in the Civil Procedure Rules is “interim injunctions”: see CPR r.25.1(1)(a).
99 Hervey v Smith (1855) 1 K. & J. 389; Hermann Loog v Bean (1884) L.R. 26 Ch. D. 306; Daniel v
Ferguson [1891] 2 Ch. 27; Canadian Pacific Ry v Gaud [1949] 2 K.B. 239 CA; Esso Petroleum Co
Ltd v Kingswood Motors (Addlestone) Ltd [1974] Q.B. 142.
100 [1975] A.C. 396 at 406.
101 [1965] A.C. 269 at 338, per Lord Upjohn.
102 See also Newson v Pender (1884) L.R. 27 Ch. D. 43; Canadian Pacific Ry v Gaud [1949] 2 K.B.
239.
103 [1975] A.C. 396 at 407–409.
104 [1975] A.C. 396 at 408. For a clearer setting out of the principles, see Fellowes & Son v Fisher [1976]
Q.B. 122, per Browne LJ at 137–138. Sir John Donaldson MR in Francome v Mirror Group
Newspapers Ltd [1984] 1 W.L.R. 892 at 899 expressed preference for the term “balance of justice”
as against “balance of convenience”. See also Cayne v Global Natural Resources Plc [1984] 1 All
E.R. 225 at 237, per May LJ. For an interpretation of American Cyanamid, according to which the
courts can always take into account any clear view they have reached as to the relative strengths of
the parties’ cases (albeit that they should rarely attempt to resolve complex issues of disputed fact
or law), see Series 5 Software Ltd v Clarke [1996] 1 All E.R. 853.

[2166]
 INTERIM INJUNCTIONS

the claimant finally succeeds, or on the claimant’s undertaking in damages105 if it

be granted and the defendant finally succeeds.106 If these considerations leave the
matter in doubt, various factors depending on the nature of the case must be taken
into account to see where the balance of convenience lies. These include: the dif-
ficulty in framing the injunction in clear and fair terms107; the degree of injury to
each party if the application is not granted but that party succeeds at the trial108;
whether either party would enjoy an unfair advantage if matters were left open until
the trial109; that the defendant is unarguably committing a legal wrong so that the
only arguable defence is that the claimant is not the person entitled to complain of
that wrong110; and delay by the claimant in seeking the injunction.111 Only if the
uncompensatable disadvantage to each party caused by the grant or refusal of the
injunction, as the case may be, would not differ widely, is it proper to take ac-
count, in tipping the balance, of the relative strengths of each party’s case as
revealed by the evidence adduced at the hearing of the application. Where other fac-
tors are evenly balanced, “it is a counsel of prudence to take such measures as are
calculated to preserve the status quo”112; and according to Lord Diplock in Garden
Cottage Foods Ltd v Milk Marketing Board113 the status quo means “the state of af-
fairs existing during the period immediately preceding the issue of the writ claim-
ing the permanent injunction or, if there be unreasonable delay between the issue
of the writ and the motion for an interlocutory injunction, the period immediately
preceding the motion”. Where an interlocutory injunction is granted to prevent some
form of unfair competition, such as the unlawful poaching of employees, the injunc-
tion should aim to neutralise any unfair advantage that would otherwise accrue to
the defendant.114

105 See further para.28-34.

106 For applications see Polaroid Corp v Eastman Kodak [1977] F.S.R. 25; and Garden Cottage Foods
Ltd v Milk Marketing Board [1984] A.C. 130 (damages to claimant adequate, hence no injunction);
Laws v Florinplace Ltd [1981] 1 All E.R. 659; and Mercury Communications Ltd v Scott-Garner
[1984] Ch. 37 (undertaking by claimant to pay damages adequate, hence injunction). In B v D [2014]
EWCA Civ 229; [2015] 1 W.L.R. 771 the Court of Appeal held that a party could plead that dam-
ages were inadequate despite the fact that the reason they were inadequate was an agreement to limit
their amount.
107 Potters-Ballotini v Weston-Baker [1977] R.P.C. 202 CA at 209, per Scarman LJ; The Who Group
Ltd and Polydor Ltd v Stage One (Records) Ltd [1980] 2 C.M.L.R. 429 at 435; Garden Cottage
Foods Ltd v Milk Marketing Board [1984] A.C. 130 at 145–147.
108 American Cyanamid Co v Ethicon Ltd [1975] A.C. 396 at 408, per Lord Diplock; Home Box Office
Inc v Channel 5 Home Box Office Ltd [1982] F.S.R. 449; Hodge Clemco Ltd v Airblast Ltd [1995]
F.S.R. 806.
109 Dunford and Elliot Ltd v Johnson and Firth Brown Ltd [1977] 1 Lloyd’s Rep. 505 at 514, per Roskill
LJ.
110 Mail Newspapers Plc v Express Newspapers Plc [1987] F.S.R. 90.
111 Roussel-Uclaf v GD Searl & Co Ltd [1978] 1 Lloyd’s Rep. 225; Express Newspapers Ltd v Liverpool
Daily Post and Echo Plc [1985] 1 W.L.R. 1089 at 1098.
112 American Cyanamid Co v Ethicon Ltd [1975] A.C. 396 at 409.
113 [1984] A.C. 130 at 140. For other views on the meaning of the status quo in this context see, e.g.
Fellowes & Son v Fisher [1976] Q.B. 122 at 141; Budget Rent A Car International Inc v Manos
Slough Ltd (1977) 121 S.J. 374 CA; Alfred Dunhills v Sunoptic [1979] F.S.R. 337 CA. And
subsequent to the Garden Cottage case, see Graham v Delderfield [1992] F.S.R. 313 CA, where it
was held to be the position at the date of the service, rather than of the issue of the writ, that fixed
the status quo.
114 This is the so-called “springboard” principle: see generally Forse v Secarma Ltd [2019] EWCA Civ
215; [2019] I.R.L.R. 587.

[2167]
 INJUNCTIONS

(b) Exceptional situations

28-25 Lord Diplock’s final principle was that “there may be many other special fac-
tors to be taken into consideration in the particular circumstances of individual
cases”.115 This dictum was regarded by Lord Denning MR in Fellowes & Son v
Fisher116 as giving the courts licence to apply the old prima facie case rule to cases
where the application of Lord Diplock’s principles was inappropriate: and he
thought that this was so in cases of industrial disputes, breach of confidence,
covenants in restraint of trade, passing off, and in many commercial cases.
However, in Lawrence David Ltd v Ashton117 and County Sound Plc v Ocean Sound
Plc118 the Court of Appeal clarified that the American Cyanamid principles apply
in the normal way to covenants in restraint of trade and passing off respectively.
Lord Denning’s judgment in Fellows v Rother DC was expressly disapproved.119
In the light of this, an alternative view of Lord Diplock’s dictum seems preferable,
namely that in certain situations the American Cyanamid principles must be
weighed against other considerations.120 It is, of course, impossible to give an
exhaustive list of such exceptional situations but some important categories have
emerged from the cases.121

28-26 Trial unlikely The first was recognised by Lord Diplock himself in NWL Ltd v
Woods.122 The balance of convenience approach, adumbrated in the American
Cyanamid case is particularly appropriate in relation to a remedy which is both
“temporary and discretionary”,123 but where, as in a trade dispute, “the grant or
refusal of the interlocutory injunction will have the practical effect of putting an end
to the action because the harm that will have been already caused to the losing party
by its grant or refusal is complete and of a kind which money cannot constitute any
worthwhile recompense, the degree of likelihood that the [claimant] would have
succeeded in establishing his right to an injunction if the action had gone to trial,
is a factor to be brought into the balance by the judge in weighing the risks that may
result from his deciding the application one way rather than the other”.124 Similarly

115 American Cyanamid Co v Ethicon Ltd [1975] A.C. 396 at 409.

116 [1976] Q.B. 122 at 133–134. Lord Denning M.R. took a similar approach in, e.g. Hubbard v Pitt
[1976] Q.B. 142; Dunford & Elliot Ltd v Johnson and Firth Brown Ltd [1977] 1 Lloyd’s Rep. 505;
and, as agreed with by the other Court of Appeal judges, in Office Overload Ltd v Gunn [1977] F.S.R.
39; and Newsweek Inc v BBC [1979] R.P.C. 441 CA.
117 [1991] 1 All E.R. 385. cf. Lansing Linde Ltd v Kerr [1991] 1 W.L.R. 251.
118 [1991] F.S.R. 367.
119 Also disapproved was the approach of the Court of Appeal in Office Overload v Gunn [1977] F.S.R.
39 (covenant in restraint of trade); and Newsweek Inc v BBC [1979] R.P.C. 441 CA (passing off).
120 For an alternative interpretation of American Cyanamid, see Series 5 Software Ltd v Clarke [1996]
1 All E.R. 853, para.28-23 fn.104.
121 In addition to the categories listed in paras 28-26 to 28-32, Group Jose Re Co SA v Walbrook Insur-
ance Co Ltd [1996] 1 W.L.R. 1152 CA; and Czarnikow-Rionda Sugar Trading Inc v Standard Bank
London Ltd [1999] 2 Lloyd’s Rep. 187 show that American Cyanamid does not apply to interim
injunctions restraining a bank or beneficiary from effecting payment under a letter of credit: rather
the court must be satisfied that there is a clear prima facie case that the beneficiary is acting
fraudulently in drawing on the credit.
122 [1979] 1 W.L.R. 1294.
123 [1975] A.C. 396 at 405, per Lord Diplock.
124 [1979] 1 W.L.R. 1294 at 1307. In trade dispute cases the rule in American Cyanamid is modified,
in that the court must have regard to the likelihood of a successful defence under s.219 (protection
from certain tort liabilities) or s.220 (peaceful picketing) of the Trade Union and Labour Relations

[2168]
 INTERIM INJUNCTIONS

in Cayne v Global Natural Resources Plc,125 where an interim injunction was sought
to stop a company merger, the American Cyanamid principles were thought inap-
propriate and it was held that the claimant needed to show an overwhelming case
because the grant of the injunction would effectively decide the issue in the
claimant’s favour. Kerr LJ said that the American Cyanamid principles should be
restricted to cases where, “a trial is in fact likely to take place in the sense that the
[claimants’] case shows that they are genuinely concerned to pursue their claim to
trial, and that they are seeking the injunction as a means of a holding operation
pending the trial”.126

Public interest Secondly, in some cases it is appropriate to take account of the 28-27
public interest, for example, where the defendant is a local authority carrying out
public duties127; or where there is an industrial dispute affecting the public128; or
where the defendant is operating “at least near the boundary of the criminal law”129;
or where the main application is for judicial review of a public authority’s ap-
proval of a rival company’s product and interim relief, by way of a stay of the ap-
proval, is sought pending the decision of the European Court of Justice.130 It is also
relevant here to mention R. v Secretary of State for Transport Ex p. Factortame
(No.2)131 in which it was held by the House of Lords that where (pending a deci-
sion by the European Court of Justice) an interim injunction is sought to restrain
the enforcement by the Secretary of State of an English statute on the grounds of
incompatibility with European law, the public interest in the enforcement of what,
on the face of it, is the law of the land requires that no injunction should normally
be granted unless the claimant establishes a strong prima facie case of invalidity.
Lord Goff, giving the leading speech, saw this approach as not affecting the initial
threshold to be crossed under Cyanamid but as going instead to the balance of
convenience.132

Freedom of speech Thirdly, special considerations arise in connection with 28-28

freedom of speech, especially since the enactment of art.10 of the European

(Consolidation) Act 1992. See s.221(2) of that Act; Mercury Communications Ltd v Scott-Garner
[1984] Ch. 37; Dimbleby & Sons v NUJ [1984] 1 W.L.R. 427; Thomas v National Union of
Mineworkers [1986] Ch. 20; and Serco Ltd v National Union of Rail, Maritime & Transport Work-
ers [2011] EWCA Civ 226; [2011] I.C.R. 848 at [10]–[14] (Elias LJ).
125 [1984] 1 All E.R. 225 CA. See also Bryanston Finance Ltd v De Vries (No.2) [1976] Ch. 63; Fulwell
v Bragg (1983) 127 S.J. 171; Cambridge Nutrition Ltd v BBC [1990] 3 All E.R. 523 CA.
126 [1984] 1 All E.R. 225 at 234.
127 Smith v Inner London Education Authority [1978] 1 All E.R. 411 CA.
128 e.g. Beaverbrook Newspapers Ltd v Keys [1978] I.C.R. 582; NWL Ltd v Woods [1979] 1 W.L.R.
1294; Duport Steel Ltd v Sirs [1980] 1 W.L.R. 142; Metropolitan Borough of Solihull v National
Union of Teachers [1985] I.R.L.R. 211.
129 Laws v Florinplace Ltd [1981] 1 All E.R. 659 at 688, per Vinelott J.
130 R. v Ministry of Agriculture Ex p. Monsanto [1999] Q.B. 1161.
131 [1991] 1 A.C. 603. See also R. v HM Treasury Ex p. British Telecommunications Plc [1994] 1
C.M.L.R. 621 CA (where the main application was for judicial review to quash Regulations made
by the Treasury and an interim injunction requiring amendment of the Regulations was sought pend-
ing a decision of the European Court of Justice). Post-Brexit cases such as these will of course be
of less importance.
132 In R. v Secretary of State for Health Ex p. Imperial Tobacco Ltd [2001] 1 W.L.R. 127 the House of
Lords left unresolved the question whether domestic law or Community law applies to determine
whether an interim injunction should be granted restraining the Secretary of State from making
regulations to implement an allegedly invalid directive.

[2169]
 INJUNCTIONS

Convention of Human Rights into English law. In any case where an injunction is
sought, or sought to be enforced, the constraints of art.10 must be observed.133 It
has been held that the American Cyanamid case has not affected previous rul-
ings134 that interim injunctions should not be issued in a libel action where the
defendant raises a defence, whether of justification, fair comment on a matter of
public interest, or privilege, unless the defence would obviously fail at trial.135
Moreover, in Greene v Associated Newspapers Ltd136 the Court of Appeal held that
that common law approach in defamation cases had not been altered by s.12(3) of
the Human Rights Act 1998 (which lays down in all cases where freedom of speech
may be in issue that no interim injunction to restrain a publication shall be granted
“unless the court is satisfied that the applicant is likely to establish that publica-
tion should not be allowed”).
28-29 One might expect a similar approach in cases of breach of confidence or
disclosure of private information. Before 2004 there were some doubts over this.137
In Cream Holdings Ltd v Banerjee,138 however, the House of Lords settled the
matter. It made it clear that because of s.12(3) of the Human Rights Act 1998 the
test for interim injunctions at least in breach of confidence cases had in general to
be whether the applicant was “more likely than not” to succeed at trial, although
there might be exceptional cases, for instance where the potential adverse
consequences of disclosure were particularly grave. It followed that in such cases
the burden on the claimant was slightly less demanding than in libel: he had to
show, not that the defence had to fail, but merely that his prospects of success were

133 Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] 4 W.L.R. 29 at [100]–
[112] (here applied to the otherwise unlawful interference with the activities of “frackers”). In the
event, the injunction here was held properly granted and properly enforceable.
134 Coulson v Coulson (1887) 3 T.L.R. 846; Bonnard v Perryman [1891] 2 Ch. 269; Monson v Tus-
sauds [1899] 1 Q.B. 671 (where it was argued that the right of the jury to try the issue would
otherwise be usurped); Fraser v Evans [1969] 1 Q.B. 349. See also on passing off: Sim v HJ Heinz
& Co Ltd [1959] 1 W.L.R. 313.
135 Bestobell Paints v Bigg [1975] F.S.R. 421; Harakas v Baltic Mercantile and Shipping Exchange Ltd
[1982] 1 W.L.R. 958; T Smith & Nephew Ltd v 3M United Kingdom Plc [1983] R.P.C. 92; Herbage
v Pressdram Ltd [1984] 1 W.L.R. 1160; Al-Fayed v The Observer Ltd, The Times, 14 July 1986 CA;
Khashoggi v IPC Magazines Ltd [1986] 1 W.L.R. 1412; Kaye v Robertson [1991] F.S.R. 62; Hol-
ley v Smyth [1998] Q.B. 726 CA (libel and malicious falsehood). In Femis-Bank (Anguilla) Ltd v
Lazar [1991] Ch. 391, it was held that, similarly to defamation cases, the protection of free speech
is an important factor in deciding whether to grant an interim injunction to restrain an alleged
conspiracy to injure so that such an injunction should only be granted where the claimant has
established a strong prima facie case (as in Gulf Oil Ltd v Page [1987] Ch. 327). The need to protect
free speech was also emphasised by the Court of Appeal in discharging an interim injunction in
Cambridge Nutrition Ltd v BBC [1990] 3 All E.R. 523 (breach of contract). But in Microdata
Information Services Ltd v Rivendale Ltd [1991] F.S.R. 681 CA; followed in, e.g. Essex Electric (Pte)
Ltd v IPC Computers (UK) Ltd [1991] F.S.R. 690, the approach in defamation cases was not extended
to what was in substance an action for the tort of interference with contract.
136 [2004] EWCA Civ 1462; [2005] Q.B. 972. See too the privacy case of LNS v Persons Unknown
[2010] EWHC 119 (QB); [2010] E.M.L.R. 16.
137 In favour of the approach were Woodward v Hutchins [1977] 1 W.L.R. 760; Lion Laboratories Ltd
v Evans [1985] Q.B. 526; Boehringer Ingelheim Ltd v Vetplus Ltd [2007] EWCA Civ 583; [2007]
F.S.R. 29 (a malicious falsehood case), and a number of public figure privacy cases, e.g. Ferdinand
v MGN Ltd [2011] EWHC 2454 (QB); and McClaren v News Group Newspapers Ltd [2012] EWHC
2466 (QB); [2012] E.M.L.R. 33. But a less free-speech-friendly approach was adopted in a number
of others, such as Schering Chemicals Ltd v Falkman Ltd [1982] Q.B. 1; Francome v Mirror Group
Newspapers Ltd [1984] 1 W.L.R. 892; Att Gen v Observer Newspapers Ltd [1989] 2 F.S.R. 3; and
Att Gen v Guardian Newspapers Ltd [1987] 1 W.L.R. 1248.
138 [2004] UKHL 44; [2005] 1 A.C. 253.

[2170]
 INTERIM INJUNCTIONS

sufficiently favourable to justify such an order being made in the particular

circumstances of the case.139 In Browne v Associated Newspapers Ltd140 the Court
of Appeal, in applying the flexible approach in Cream Holdings Ltd v Banerjee,
upheld the grant of an interim injunction restraining publication by a newspaper of
some (but not all) allegedly confidential information relating to a relationship
between the claimant and another man. Sir Anthony Clarke MR said that it was for
the claimant to persuade the court that he would probably (more likely than not)
succeed, and went on:
“By ‘succeed at trial’ we understand Lord Nicholls [in Banerjee] to mean that the claim-
ant is likely to succeed after the court has carried out the relevant balance between the
claimant’s rights under article 8 and the newspaper’s rights under article 10.”141

In UK Oil and Gas Investments Plc v Persons Unknown142 it was held that in any
case where freedom of speech was in issue, even one involving property rights
rather than publication of material, the claimant had to show that it was more likely
than not to succeed at trial.143

Dispute of law Fourthly, it has been held that American Cyanamid does not ap- 28-30
ply where there is only a dispute as to the law and not a factual dispute,144 or where
there is no arguable defence to the claim.145

Mandatory injunction Finally, although Lord Hoffmann in obiter dicta has stated 28-31
that this is incorrect,146 American Cyanamid principles have been held to be inap-
plicable where the interim injunction sought is mandatory and not prohibitory.147

139 Note that in Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462; [2005] Q.B. 972, decided
after Banerjee, the Court of Appeal made it clear that the more restrictive test continued to apply in
defamation cases.
140 [2007] EWCA Civ 295; [2008] Q.B. 103. Banerjee was also applied to breach of confidence claims
in the later decisions in Donald v Ntuli [2010] EWCA Civ 1276; [2011] 1 W.L.R. 294; and ABC v
Telegraph Media Group Ltd [2018] EWCA Civ 2329; [2019] 2 All E.R. 684. It has in addition been
applied to an invasion of privacy case: see PJS v News Group Newspapers Ltd [2016] UKSC 26;
[2016] A.C. 1081 (but there it was made clear that privacy might require greater protection because,
unlike confidential information, it merited protection even where the information was possibly
known to some of the public).
141 [2007] EWCA Civ 295; [2008] Q.B. 103.
142 [2018] EWHC 2252 (Ch); [2019] J.P.L. 161.
143 That case concerned injunctions to prevent anti-fracking protests. In Fitzwilliam Land Co v Chees-
man [2018] EWHC 3139 (QB) at [41], the same approach was applied by agreement to trespass by
anti-hunt protestors. On the other hand, since the right of freedom of speech will hardly ever trump
landowners’ property rights in injunction cases, the victory for free speech is somewhat Pyrrhic.
144 Bradford Metropolitan City Council v Brown (1987) 19 H.L.R. 16. See also Office Overload Ltd v
Gunn [1977] F.S.R. 39 at 44, per Bridge LJ; Athletes Foot Marketing Associates Inc v Cobra Sports
Ltd [1980] R.P.C. 343 at 348–349; Lawrence David Ltd v Ashton [1991] 1 All E.R. 385 at 393 and
396.
145 Official Custodian for Charities v Mackey [1985] Ch. 151. See also Athletes Foot Marketing As-
sociates Inc v Cobra Sports Ltd [1980] R.P.C. 343; Att Gen v Barker [1990] 3 All E.R. 257 at 262,
per Nourse LJ.
146 National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 W.L.R. 1405
at [19].
147 Locabail International Finance Ltd v Agroexport [1986] 1 W.L.R. 657 at 665; Films Rover
International v Cannon Films Sales Ltd [1987] 1 W.L.R. 670 at 681–682; Jakeman v South West
Thames RHA [1990] I.R.L.R. 62. See also De Falco v Crawley BC [1980] Q.B. 460 at 481; R. v
Kensington & Chelsea Royal LBC Ex p. Hammell [1989] Q.B. 518.

[2171]
 INJUNCTIONS

But as to what are the relevant principles to be applied, there has been a divergence
of views. In Locabail International Finance Ltd v Agroexport148 the Court of Ap-
peal, following the traditional approach,149 held that a mandatory injunction will be
issued at an interlocutory stage only in a clear case, that is where there is a high
degree of assurance (higher than that appropriate for a prohibitory injunction) that
at the trial it would appear that the injunction had rightly been granted. But a
somewhat different approach was taken by Hoffmann J in Films Rover Interna-
tional Ltd v Cannon Film Sales Ltd150 and was repeated by him in obiter dicta in
National Commercial Bank Jamaica Ltd v Olint Corp Ltd.151 For him the basic
question is not so much whether the injunction sought was prohibitory or manda-
tory but whether the injustice to the defendant if the application were granted and
the claimant subsequently failed at the trial would outweigh the injustice to the
claimant if the application were refused and he subsequently succeeded at the trial;
the Court of Appeal in the Locabail case was therefore merely laying down a
guideline rather than a rule, which reflected the fact that mandatory injunctions, if
granted at an interlocutory stage, generally create greater risks of injustice to the
defendant in the manner described than prohibitory injunctions. Applying this ap-
proach in the Films Rover case, Hoffmann J granted an interim mandatory injunc-
tion even though the claimant could not establish a strong prima facie case. In
National Commercial Bank Jamaica Ltd v Olint Corp Ltd152 there was no triable
issue so that no interim injunction should have been granted (whether prohibitory
or mandatory).
28-32 Subsequent to the Films Rover case 153 in Nottingham Building Society v
Europdynamics Systems154 Chadwick J put forward a four point formulation that
was approved by the Court of Appeal in Zockoll Group Ltd v Mercury Communica-
tions Ltd155 “as being all the citation that should in future be necessary”. Chadwick
J’s four-point formulation was as follows:
“First the overriding consideration, as for all interim injunctions, is which course is likely
to involve the least risk of injustice if it turns out to be ‘wrong’. Secondly, in considering
whether to grant a mandatory injunction, the court must keep in mind that an order which
requires a party to take some positive step at an interlocutory stage, may well carry a
greater risk of injustice if it turns out to have been wrongly made than an order which
merely prohibits action, thereby preserving the status quo. Thirdly, it is legitimate, where
a mandatory injunction is sought, to consider whether the court does feel a high degree
of assurance that the plaintiff will be able to establish his right at trial. That is because the
greater the degree of assurance the plaintiff will ultimately establish his right, the less will
be the risk of injustice if the injunction is granted. But, finally, even where the court is
unable to feel any high degree of assurance that the plaintiff will establish his right, there
may still be circumstances in which it is appropriate to grant a mandatory injunction at

148 [1986] 1 W.L.R. 657. This was followed by Auld J in Jakeman v South West Thames RHA [1990]
I.R.L.R. 62. See also Leisure Data v Bell [1988] F.S.R. 367 CA; Moran v University of Salford
(No.2), The Times, 23 November 1993 CA.
149 See, e.g. Shepherd Homes Ltd v Sandham [1971] Ch. 340 at 351.
150 [1987] 1 W.L.R. 670.
151 [2009] UKPC 16; [2009] 1 W.L.R. 1405.
152 [2009] UKPC 16; [2009] 1 W.L.R. 1405.
153 But not mentioned by Lord Hoffmann in National Commercial Bank Jamaica Ltd v Olint Corp Ltd
[2009] UKPC 16; [2009] 1 W.L.R. 1405.
154 [1993] F.S.R. 468 at 474.
155 [1998] F.S.R. 354 at 366.

[2172]
 INTERIM INJUNCTIONS

an interlocutory stage. Those circumstances will exist where the risk of injustice if this
injunction is refused sufficiently outweigh the risk of injustice if it is granted.”

In the Nottingham Building Society case itself, the interim remedy sought, and
granted, ordered the delivery up of computer software in a case where Chadwick J
was satisfied, with a high degree of assurance, that the claimant would succeed at
trial.156 In the Zockoll case an interim mandatory injunction requiring performance
of a contractual obligation was refused.

(c) Function of appellate court

The function of an appellate court in relation to a decision on the granting or 28-33
refusal of an interim injunction was considered by the House of Lords in Hadmor
Productions Ltd v Hamilton157 and in Garden Cottage Foods Ltd v Milk Market-
ing Board.158 In the latter Lord Diplock explained the position as follows:
“[An appellate court] is entitled to exercise an original discretion of its own only when it
has come to the conclusion that the judge’s exercise of his discretion was based on some
misunderstanding of the law or of the evidence before him, or on an inference that
particular facts existed or did not exist, which, although it was one that might legitimately
have been drawn on the evidence that was before the judge, can be demonstrated to be
wrong by further evidence that has become available by the time of the appeal, or on the
ground that there has been a change of circumstances after the judge made his order that
would have justified his acceding to an application to vary it. Since reasons given by
judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there
may also be occasional cases where, even though no erroneous assumption of law or fact
can be identified, the judge’s decision to grant or refuse the injunction is so aberrant that
it must be set aside on the ground that no reasonable judge regardful of his duty to act
judicially could have reached it.”159

(d) Undertaking as to damages

An interim injunction freezes the situation and prevents the defendant from tak- 28-34
ing some action which, at the trial, may prove to be lawful. Such an injunction may,
therefore, cause the defendant to suffer substantial loss and, accordingly, will not
normally be granted unless it is accompanied by an undertaking given by the claim-
ant160 to the court to pay to the defendant such damages as it is just that the defend-
ant should receive if the issue of the injunction should turn out to have been
unjustified.161 Formerly, it was thought that no such undertaking could be required

156 Although not mentioned, it would appear that the order fell within the Torts (Interference with
Goods) Act 1977 s.4.
157 [1983] 1 A.C. 191.
158 [1984] A.C. 130.
159 [1984] A.C. 130 at 137.
160 The undertaking should be supported by specific evidence of the claimant’s ability to meet it: Brigid
Foley Ltd v Elliott [1982] R.P.C. 433.
161 See, generally, S. Gee, “The Undertaking in Damages” [2006] L.M.C.L.Q. 181. The practice of mak-
ing an undertaking as to damages a condition of the issue of an interim injunction is said to be over
100 years old and to be almost universal: Hoffmann-La Roche & Co AG v Secretary of State for
Trade and Industry [1975] A.C. 295 at 356, per Lord Wilberforce. See also at 360–362, per Lord
Diplock. If the claimant accepts an undertaking from the defendant in lieu of an injunction, a cross-
undertaking in damages by the claimant will be inserted unless the contrary is expressed: Practice

[2173]
 INJUNCTIONS

of the Crown as a condition of its obtaining an injunction,162 but it appears that this
was because, until the Crown Proceedings Act 1947, the Crown could not be made
liable in damages in the ordinary way. Today, therefore, there is no reason why an
undertaking in damages should not be required of the Crown when it sues to protect
a proprietary interest of its own.163 On the other hand, no such undertaking should
be required, at least in the absence of special circumstances,164 when the Crown
brings proceedings for the purposes of enforcing the law and not for protection of
its own interests. Thus, where the Crown sought an interim injunction to restrain
the defendants from selling drugs at a price in excess of that fixed by a statutory
regulation, and the defence was that the regulation was ultra vires and so void, it
was held that the Crown was entitled to succeed and that no undertaking in dam-
ages should be required as a condition of the issue of the injunction.165 The privilege
not to give an undertaking in damages is, moreover, not limited to the Crown: on
principle it extends generally to public authorities seeking interim injunctions to
enforce the law for the benefit of the community.166

(e) Search orders

28-35 A search order is what was previously known as an Anton Piller order.167 The
power of the High Court to grant such an order has been placed on a firm statutory

Note [1904] W.N. 203. For the undertaking as to damages in the context of search (Anton Piller)
orders and freezing (Mareva) injunctions, see para.28-43, para.28-45 and para.28-49. In Blue Town
Investments Ltd v Higgs & Hill Plc [1990] 1 W.L.R. 696, where a claimant chose not to apply for
an interim injunction so as to avoid having to give a cross-undertaking in damages, it was held that
the claim for a permanent injunction, which was very unlikely to succeed, would be struck out un-
less the claimant applied for an interim injunction accompanied by a cross-undertaking in damages.
But in Oxy Electric Ltd v Zainuddin [1991] 1 W.L.R. 115 it was doubted whether a court had such
a jurisdiction to impose conditions on the rights of a litigant to prosecute his claim in the normal
way. For the approach to striking out, for want of prosecution, proceedings to enforce a cross-
undertaking in damages, see Barratt Manchester Ltd v Bolton MBC [1998] 1 W.L.R. 1003. For rejec-
tion of the argument that a defendant can recover, on a cross-undertaking in damages, not only for
its own loss but also the loss of third parties, see Smithkline Beecham Plc v Apotex Europe Ltd [2006]
EWCA Civ 658; [2007] Ch. 71.
162 Att Gen v Albany Hotel Co [1896] 1 Ch. 696.
163 Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] A.C. 295 at 341,
per Lord Reid; at 351, per Lord Morris; at 357–358, per Lord Wilberforce; at 361–363, per Lord
Diplock; at 370–371, per Lord Cross.
164 Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] A.C. 295 at 363,
per Lord Diplock.
165 Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] A.C. 295 Lord
Wilberforce dissenting; see also Director General of Fair Trading v Tobyward Ltd [1989] 1 W.L.R.
517.
166 Kirklees MBC v Wickes Building Supplies Ltd [1993] A.C. 227 HL. This is criticised by Zucker-
man, (1993) 12 C.J.Q. 268. Kirklees was applied in Securities and Investment Board v Lloyd-
Wright [1993] 4 All E.R. 210 in holding that the S.I.B. need not give a cross-undertaking in dam-
ages even in respect of a worldwide freezing (Mareva) injunction; and more recently in Financial
Services Authority v Sinaloa Gold Plc [2013] UKSC 11; [2013] 2 A.C. 28 (on which, see J. Varuhas
& P. Turner, “Injunctions, undertakings in damages and the public-private divide” (2014) 130 L.Q.R.
33).
167 The new terminology is that laid down in CPR r.25.1(1)(h). The old terminology was based on the
leading case, Anton Piller KG v Manufacturing Processes Ltd [1976] Ch. 55. See generally, S. Gee,
Commercial Injunctions, 6th edn (2016); M. Hoyle, Freezing and Search Orders, 4th edn (2006);
M. Dockray & H. Laddie, “Piller Problems” (1990) 106 L.Q.R. 601; D. Capper, “The Duties of a
Plaintiff with an Anton Piller Order” (1998) 49 N.I.L.Q. 210. Scott J pointed out in Columbia Picture

[2174]
 INTERIM INJUNCTIONS

footing by s.7 of the Civil Procedure Act 1997. A search order is an interim manda-
tory injunction, which is almost invariably granted ex parte and usually orders the
defendant to allow the claimant to enter his premises168 for the purposes of search-
ing for, inspecting, and seizing property infringing the claimant’s rights or docu-
ments relevant to the claim against the defendant. It is given where speed and
secrecy are vital to prevent the defendant destroying or disposing of such property
or documents. While developed to deal with cases involving intellectual property,
search orders have been granted in other contexts.169 Special principles have been
developed to govern search orders, and the general rule in American Cyanamid v
Ethicon170 does not apply.
In Anton Piller KG v Manufacturing Processes Ltd171 the claimants asserted that 28-36
the defendants were passing information to German manufacturers in breach of
confidence and copyright. They wanted an injunction to stop this but, in the
meantime, fearful that, once the defendants had notice of an action, incriminating
documents would be disposed of, they sought and were granted an injunction
enabling them to enter the defendants’ premises, to inspect relevant documents and
to seize any belonging to them. According to Ormrod LJ there were three essential
pre-conditions for the making of such an order:
“First, there must be an extremely strong prima facie case. Secondly, the damages,
potential or actual, must be very serious for the applicant. Thirdly, there must be clear
evidence that the defendants have in their possession incriminating documents or things,
and that there is a real possibility that they may destroy such material before any applica-
tion inter partes can be made.”172

But in applying these three pre-conditions it is important to bear in mind the com-
ments of Hoffmann J in Lock International Plc v Beswick,173 he said:
“To borrow a useful concept from the jurisdiction of the European Community, there must
be proportionality between the perceived threat to the [claimant’s] rights and the remedy
granted. The fact that there is overwhelming evidence that the defendant has behaved
wrongfully in his commercial relationships does not necessarily justify an Anton Piller
order … The more intrusive orders allowing searches of premises or vehicles require a
careful balancing of, on the one hand, the [claimant’s] right to recover his property or to
preserve important evidence against, on the other hand, violation of the privacy of a
defendant who has had no opportunity to put his side of the case.”

Industries v Robinson [1987] Ch. 38 at 71, that “Anton Piller orders are almost invariably ac-
companied by Mareva injunctions”.
168 By s.7(3) of the Civil Procedure Act 1997, a search order can only be granted in respect of premises
in England and Wales. For cases concerning foreign premises prior to the Act, see Altertext Inc v
Advanced Data [1985] 1 W.L.R. 957; Protector Alarms Ltd v Maxim Alarms Ltd [1978] F.S.R. 442;
Cook Industries Inc v Galliher [1979] Ch. 439.
169 See, e.g. Emanuel v Emanuel [1982] 1 W.L.R. 669 (ancillary relief after divorce): Yousif v Salama
[1980] 1 W.L.R. 1540 (contract debt).
170 [1975] A.C. 396.
171 [1976] Ch. 55.
172 [1976] Ch. 55 at 62. In Dunlop Holdings Ltd v Staravia Ltd [1982] Com. L.R. 3 CA, the last part of
the third requirement was relaxed slightly, Oliver LJ saying “It is seldom that one can get cogent or
actual evidence of a threat to destroy material or documents, so it is necessary for it to be inferred
from the evidence which is before the court”. Certainly the character of the defendant is very
important: for example, a search order should not be granted against a practising barrister: Randolph
M Fields v Alison Watts (1985) 129 S.J. 67 CA.
173 [1989] 1 W.L.R. 1268 at 1281.

[2175]
 INJUNCTIONS

28-37 It was also stressed in the Anton Piller case that the defendant must be given the
opportunity to consider the order, to consult his own solicitor and to apply to court
for its discharge if improperly obtained174; and the claimant’s solicitor must attend
at the execution of the order.175 In Ormrod LJ’s words: “Great responsibility clearly
rests on the solicitors for the applicant to ensure that the carrying out of such an
order is meticulously carefully done with the fullest respect for the defendant’s
rights …”.176 The order actually made in the Anton Piller case was based on Temple-
man J’s precedent in EMI v Pandit177 according to which the claimant should give
the usual undertaking in damages required for interim injunctions178 and the order
should specify the maximum number of persons to accompany the solicitor, the ad-
dress of the premises to be searched,179 and the documents or property being
sought.180 It was also explained in the Anton Piller case that the effect of the order
is not to allow the claimant to force entry and in this it differs from a search war-
rant; but if the defendant disobeys the order this will not merely be evidence against
him but will constitute a contempt of court.181
28-38 In an important statement on the practice and procedure to be followed in obtain-
ing and executing search orders, Sir Donald Nicholls VC in Universal Thermosen-
sors Ltd v Hibben182 made the following main points:
(1) In general search orders should only be executed on working days in of-
fice hours when a solicitor can be expected to be available should the
defendant need to seek legal advice.
(2) If the order is to be executed at a private house, and it is at all likely that a
woman may be in the house alone, the solicitor serving the order must be,
or must be accompanied by, a woman.
(3) Unless seriously impracticable, a detailed list of the items being removed

174 These requirements have been strengthened by the insistence in AB v CDE [1982] R.P.C. 509 that
the defendant must be told of his right to legal advice and that copies of the evidence in support of
the search order application should be taken to show to the defendant. All these requirements are
incorporated in the standard form of search order set out as an annex to the Practice Direction on
Interim Injunctions, CPR Pt 25 para.25APD (hereinafter referred to as the CPR Practice Direction).
175 A search order should be served by a “supervising solicitor”. See the CPR Practice Direction:
para.28-38 fn.184.
176 [1976] Ch. 55 at 62. In VDU Installations Ltd v Integrated Computer Systems [1989] F.S.R. 378 the
claimant’s solicitor was held to be in contempt for improper execution of the Anton Piller order.
177 [1975] 1 W.L.R. 302. See the Anton Piller case [1976] Ch. 55 at 61.
178 The court must be satisfied that the claimant is good for such damages: Vapormatic Co v Sparex Ltd
[1976] 1 W.L.R. 939. See also Sch.C(7) of the standard form of search order annexed to the Practice
Direction.
179 An order allowing entry “at any other of the defendant’s premises” should not be granted: Protec-
tor Alarms Ltd v Maxim Alarms Ltd [1978] F.S.R. 442.
180 In Columbia Pictures Inc v Robinson [1987] Ch. 38 at 77, Scott J stressed that orders should be
drawn up as narrowly as possible and that no material should be taken unless clearly covered by the
terms of the order. See also LT Piver SARL v S & J Perfume Co Ltd [1987] F.S.R. 159.
181 In Bhimji v Chatwani [1991] 1 W.L.R. 989, Scott J held that disobeying an Anton Piller order and
applying for its discharge would not necessarily mean that the defendant would be punished for
contempt but that it put the defendant “at the risk of committal”. Something more was needed to
justify punishment (for example, evidence to suggest that the making of the application was merely
a device to postpone the search; or evidence of impropriety in respect of the documents in any of
the premises to be searched that took place during the period of the delay).
182 [1992] 1 W.L.R. 840 at 859–861. This statement formed the basis for the CPR Practice Direction.
All the points made by Sir Donald Nicholls VC are in the standard form for a search order annexed
to that Practice Direction.

[2176]
 INTERIM INJUNCTIONS

should be prepared at the premises before they are removed, and the defend-
ant should be given an opportunity to check that list at the time.
(4) An order that the defendant should not inform others (except his lawyers)
of the existence of the order should be valid for only a few days.
(5) Unless there is good reason for doing otherwise, the order should not be
executed at business premises save in the presence of a responsible officer
or representative of the company or trader in question.
(6) A means should be devised whereby the search order cannot be used by a
claimant to search through the documents of a competitor.183
(7) The use of the claimant’s solicitor as an officer of the court to see that the
order is property executed has not proved satisfactory. Judges should
therefore give serious consideration to the desirability of insisting that: (a)
the order be served, and its execution supervised, by a solicitor other than
a member of the firm of solicitors acting for the claimant in the action184;
(b) the solicitor should be experienced and have some familiarity with
search orders; (c) the solicitor should prepare a written report on the execu-
tion of the order; (d) a copy of that report should be served on the defend-
ant; (e) in any event, the claimant should return to court within a few days
and present that report at an inter partes hearing preferably to the judge who
made the order.
The Vice Chancellor recognised that this procedure would add consider-
ably to the cost of executing search orders, but thought this necessary in
order to prevent search orders falling into disrepute:
“If [claimants] wish to take advantage of this truly Draconian type of order, they
must be prepared to pay for the safeguards which experience has shown are
necessary if the interests of defendants are fairly to be protected.”185

(i) Order for disclosure and interrogatories

Several additional points on search orders have emerged from decisions 28-39
subsequent to the Anton Piller case. In EMI v Sarwar186 the Court of Appeal ac-
cepted that an order for disclosure and interrogatories could be added to the search
order, which meant that in that case the defendants were ordered to name their sup-
pliers of pirate cassette tapes, and to hand over documents, such as order books,
relating to the infringing tapes. For a time this extension made search orders doubly
effective. But then in Rank Film Distribution v Video Information Centre187 the
House of Lords reluctantly held that the privilege against self-incrimination meant
that discovery and interrogatories should not be ordered against the defendant where
compliance would render him liable to prosecution. However, in its application to
civil proceedings relating to the infringement of intellectual property rights or
passing-off, this decision was immediately reversed and the privilege against self-

183 By the Practice Direction, the standard form of search order does not require the person served with
the order to allow anyone, who in the view of the supervising solicitor could gain commercially from
anything he might read or see, on the premises if the person served with the order objects.
184 By the Practice Direction, this independent solicitor is called a “supervising solicitor”.
185 [1992] 1 W.L.R. 840 at 861.
186 [1977] F.S.R. 146. Disclosure of the whereabouts of the listed items and the names of the suppliers
of, and customers for, them is required by para.4 of the standard form of search order set out in the
CPR Practice Direction.
187 [1982] A.C. 380.

[2177]
 INJUNCTIONS

incrimination withdrawn by s.72 of the Senior Courts Act 1981. This basically
provides that in any such proceedings188 a person shall not be excused from answer-
ing any questions put to him, or complying with any court order made, on the
ground that to do so would expose him to criminal proceedings for a related of-
fence189; but that any statement or admission made in answering the questions or
complying with the order shall not be admissible against him in criminal proceed-
ings for any related offence. This is a compromise, modelled on s.31 of the Theft
Act 1968,190 and for a claimant in intellectual property cases, it restores the full ef-
fectiveness of the search order. However, in Tate Access Floors Inc v Boswell191 it
was held that, except where s.72 of the Senior Courts Act 1981 applies, if there is
a real risk of a conspiracy to defraud charge (as there very often will be in search
order cases) the privilege against self-incrimination means that no search order
should be made against individual defendants except to recover property belong-
ing to the claimants. The Rank Film order was interpreted as extending not merely
to discovery and interrogatories but also to the order permitting search and seizure
of documents other than the infringing copies themselves. In C Plc v P192 comput-
ers were seized during a search order and placed in the custody of the supervising
solicitor for “imaging” by a computer expert. The imaging uncovered highly
objectionable images of children. It was held that the privilege against self-
incrimination, whether in criminal or civil proceedings, did not extend to material—
such as, in this case, the offending images on the computers—which was independ-
ent of the order (i.e. the offending material had not been ordered to be produced).
28-40 In Bayer AG v Winter193 it was held by the Court of Appeal that where the
disclosure of the whereabouts of documents or the particulars of transactions has
been ordered in aid of a search order, additional injunctions restraining a defend-
ant from leaving the jurisdiction and ordering the surrender of his passport can be
ordered where these are felt necessary to render the ancillary orders effective. To
render the search more effective a defendant may be ordered to display or print out

188 Which have been held to include proceedings for breach of commercial, but not personal,
confidentiality: Phillips v News Group Newspapers Ltd [2012] UKSC 28; [2013] 1 A.C. 1 (victim
of phone-hacking could rely on s.72, but only because eavesdropped material included commercial
matters).
189 In Universal City Studios Inc v Hubbard [1984] Ch. 225 it was held that a “related offence” for
proceedings within s.72(2)(c) of the Senior Courts Act 1981 can be one unconnected with intel-
lectual property rights or passing off if it is an “offence revealed by the facts on which the [claim-
ant] relies in these proceedings”. See also Phillips v News Group Newspapers Ltd [2012] UKSC 28;
[2013] 1 A.C. 1 at [41]–[46] (claim for breach of confidence by phone-hacking: conspiracy to com-
mit that offence would be related offence).
190 But in one way wider, since under the 1968 Act the privilege against self-incrimination is withdrawn
only in respect of specified offences (i.e. those under that Act), whereas under s.72 it is withdrawn
in respect of all related offences. See Phillips v News Group Newspapers Ltd [2012] UKSC 28;
[2013] 1 A.C. 1 at [41] (Lord Walker).
191 [1991] Ch. 512. cf. Twentieth Century Fox v Tryare Ltd [1991] F.S.R. 58. In AT & T Istel Ltd v Tully
[1993] A.C. 45 HL, the privilege against self-incrimination, which would otherwise have provided
the defendants with a defence to an order to file affidavits setting out their dealings with certain as-
sets and exhibiting documents relating to dealing with such assets, did not apply because the Crown
Prosecution Service had unequivocally agreed not to make use of the material divulged in compli-
ance with the disclosure order. That undertaking provided adequate alternative protection for the
defendants. See also IBM United Kingdom Ltd v Prima Data International Ltd [1994] 1 W.L.R. 719
in which a search order was not set aside because the defendant was told in everyday language of
his privilege right but expressly declined to claim it.
192 [2007] EWCA Civ 493; [2008] Ch. 1.
193 [1986] 1 W.L.R. 497.

[2178]
 INTERIM INJUNCTIONS

on a computer any relevant computer-readable documents194 and to deliver up keys

necessary to open locked drawers and cabinets.195

(ii) Full disclosure by claimant required

As with all ex parte orders the claimant must make full disclosure to the court 28-41
of all material matters and in several cases search orders have been discharged for
failure to comply with this requirement.196 In Columbia Pictures Inc v Robinson197
Scott J said: “the nature of Anton Piller orders requires that the affidavits in sup-
port of applications for them ought to err on the side of excessive disclosure. In the
case of material falling into the grey area of possible relevance, the judge, not the
[claimant’s] solicitors, should be the judge of relevance”. There is a continuing duty
of disclosure after the grant of the search order up to the time of the execution of
the order.198

(iii) Custody and non-use of items seized

An undertaking should be given that any articles obtained as a result of the order 28-42
will be retained by the claimant’s solicitors in safe custody.199 Indeed in Columbia
Pictures Inc v Robinson200 Scott J considered that the claimant’s solicitors should
return anything not belonging to the claimant after copying, so that the material
should be out of the defendant’s hands for a relatively short period of time.201 He
also thought that if the ownership of seized material was in dispute it should not
be retained by the claimant’s solicitors pending trial but should rather be delivered
to the defendant’s solicitors.202 A similar undertaking by the claimant that is often
impliedly or expressly insisted on is not to use any documents or information
obtained as a result of the search order for a collateral purpose or, as it is sometimes

194 Gates v Swift [1982] R.P.C. 339. See also para.3 of the standard form of search order laid down by
the Practice Direction.
195 Hazel Grove Music Co Ltd v Elster Enterprises [1983] F.S.R. 379.
196 See, e.g. Thermax v Schott Industrial Glass [1981] F.S.R. 289; Wardle Fabrics v Myristis [1984]
F.S.R. 263; Jeffrey Rogers Knitwear Production Ltd v Vinola (Knitwear) Manufacturing Co [1985]
F.S.R. 184. In Dormeuil Frères SA v Nicolian International (Textiles) Ltd [1988] 1 W.L.R. 1362, Sir
Nicolas Browne-Wilkinson V C held that the courts have a discretion whether to discharge an ex
parte order for material non-disclosure (on this point following decisions on what are now called
freezing orders—see para.28-54); and that it was not the correct procedure to discharge an ex parte
injunction at an interlocutory hearing. But search orders have subsequently been discharged at the
interlocutory stage in Lock International Plc v Beswick [1989] 1 W.L.R. 1268; O’Regan v Iambic
Productions Ltd (1989) 139 N.L.J. 1378; Swedac Ltd v Magnet & Southerns Plc [1990] F.S.R. 89
CA; NAF NAF SA v Dickens (London) Ltd [1993] F.S.R. 424. And in Tate Access Floors v Boswell
[1991] Ch. 512 Sir Nicolas Browne-Wilkinson accepted that he had been wrong in Dormeuil Frères
in thinking that normally an ex parte injunction should not be discharged at the interlocutory stage.
197 [1987] Ch. 38 at 77.
198 O’Regan v Iambic Productions Ltd (1989) 139 N.L.J. 1378.
199 See, e.g. Universal City Studios v Mukhtar & Sons Ltd [1976] 1 W.L.R. 568; Customs & Excise Com-
missioners v Hamlin & Co [1984] 1 W.L.R. 509. See also Sch.D to the standard form of search order
laid down by the Practice Direction.
200 [1987] Ch. 38 at 77. Scott J also regarded it as essential that a detailed record of the material to be
taken should be made by the claimant’s solicitors before its removal.
201 See also LT Piver SARL v S & J Perfume Co Ltd [1987] F.S.R. 159 at 160. See also Sch.D to the
standard form of search order laid down by the Practice Direction.
202 Provided the defendant’s solicitors gave an undertaking for its safe custody and production, if
required, in court. See also Sch.D to the standard form of search order laid down by the Practice
Direction.

[2179]
 INJUNCTIONS

stated, save for the purpose of civil proceedings in connection with the subject-
matter of the action.203 But this undertaking does not prevent the claimant using the
information to bring civil proceedings against third parties implicated in the same
wrongful handling of the same infringing goods.204 Nor does it prevent documents
seized being used in contempt proceedings against the defendant for failure to
comply fully with the search order.205 But according to Lord Oliver in Crest Homes
Plc v Marks,206 “the court will not release or modify the implied undertaking … save
in special circumstances and where the release or modification will not occasion
injustice to the person giving discovery”.

(iv) Improperly obtained orders

28-43 Several principles have been laid down regarding improperly obtained search
orders. First, the defendant is technically guilty of contempt if he disobeys a search
order which is subsequently discharged although the courts may choose not to
impose a penalty.207 Secondly, evidence gained under an improperly obtained search
order is admissible. 208 Thirdly, an improperly obtained search order can be
discharged, if there is some practical purpose in so doing, even though the order has
been fully executed209; but, whether discharged or not, the defendant has a claim
against the claimant in accordance with the latter’s undertaking as to damages.210

(v) Order after judgment

28-44 In Distributori Automatici Italia SpA v Halford General Trading Co Ltd211 a
search order was granted after judgment to aid execution of it. Leggatt J said:
“Where there is a real risk of justice being thwarted by a defendant intent on rendering

203 See, e.g. Hallmark Cards v Image Arts [1977] F.S.R. 150 CA; Sony Corp v Time Electronics [1981]
F.S.R. 333; General Nutrition Ltd v Pattni [1984] F.S.R. 403; Customs & Excise Commissioners v
Hamlin & Co [1984] 1 W.L.R. 509. See also Sch.C to the standard form of search order laid down
by the Practice Direction.
204 Sony Corp v Anand [1981] F.S.R. 398. See also Bayer AG v Winter (No.3) [1986] E.C.C. 465, in
which information obtained from a search order was allowed to be used to claim freezing injunc-
tions in Austria and Switzerland. cf. Twentieth Century Fox v Tryrare Ltd [1991] F.S.R. 58.
205 Crest Homes Plc v Markes [1987] A.C. 829. Additionally the House of Lords there held that it was
no bar that the documents had been seized under a later search order relating to proceedings that were
technically different from those out of which the contempt issue (for contravention of an earlier
search order) arose. See also Garvin v Domus Publishing Ltd [1989] Ch. 335 (seized documents
could be used in proceedings for contempt for breach of an earlier freezing injunction). cf. Cobra
Gulf Ltd v Rata [1998] Ch. 109.
206 Crest Homes Plc v Marks [1987] A.C. 829 at 860.
207 Hallmark Cards v Image Arts [1977] F.S.R. 150; WEA Records v Visions Channel 4 Ltd [1983] 1
W.L.R. 721 at 726; Wardle Fabrics v Myristis [1984] F.S.R. 263; Columbia Pictures Inc v Robinson
[1987] Ch. 38 at 72. See also Bhimji v Chatwani [1991] 1 W.L.R. 989; para.28-37 fn.181.
208 Helliwell v Piggot-Sims [1980] F.S.R. 582. cf. Universal City Studios Inc v Hubbard [1984] Ch. 225
at 237.
209 Booker McConnell Plc v Plascow [1985] R.P.C. 425; Columbia Pictures Inc v Robinson [1987] Ch.
38 at 85–87. cf. WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 W.L.R. 721 at 727–728.
210 WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 W.L.R. 721 at 727–728; Columbia Pictures Inc
v Robinson [1987] Ch. 38 at 85–87. cf. Booker McConnell Plc v Plascow [1985] R.P.C. 425. In Al-
Rawas v Pegasus Energy Ltd [2008] EWHC 617 (QB); [2009] 1 All E.R. 346, which concerned the
assessment of damages under the undertaking as to damages where search orders and freezing injunc-
tions had been set aside, it was held that damages for loss of management time, “general damages”
and “aggravated damages” should be awarded in accordance with normal principles of damages.
211 [1985] 1 W.L.R. 1066.

[2180]
 INTERIM INJUNCTIONS

any judgment nugatory, the need for an Anton Piller order may be even greater in aid of
execution than of judgment. In my judgment the court has jurisdiction to make an Anton
Piller after judgment for the purpose of eliciting documents which are essential to execu-
tion and which would otherwise be unjustly denied to the judgment creditor.”212

By granting the order after judgment two accompanying adjustments to the usual
search order are being made: first, in this situation the order is being given to
prevent information essential to execution being destroyed or disposed of; secondly,
while this search order can still be regarded as interim it is interim in the sense of
not being finally determinative of the rights of the parties rather than in the usual
sense of being given prior to trial or other hearing in which final judgment is given.

(vi) Abuse of search orders

The search order is a very important weapon in the armoury of claimants wish- 28-45
ing to protect intellectual property. The judges are well aware, however, that the
remedy is a drastic one213 which may be abused by claimants214 and have reacted
to such abuses by re-emphasising and strengthening the principles designed to
safeguard the defendant as well as awarding damages in accordance with the
claimant’s cross-undertaking, which may include aggravated and exemplary
damages.215

(f) Freezing injunctions

A freezing injunction (once known as a Mareva injunction216) is an interim 28-46
prohibitory injunction, almost invariably granted without notice, and usually
restraining the defendant from removing assets from the jurisdiction or disposing
of assets within it. In rare circumstances217 the order may also extend to restrain-
ing the defendant from dealing with assets outside the jurisdiction (a “worldwide

212 [1985] 1 W.L.R. 1066 at 1073. Mareva injunctions have also been granted after judgment: see
para.28-56.
213 “It has to be accepted that a common, perhaps the usual, effect of the service and execution of an
Anton Piller order is to close down the business which, on the applicant’s evidence, is being car-
ried on in violation of their rights”: per Scott J in Columbia Pictures Inc v Robinson [1987] Ch. 38
at 73. But in Chappell v UK [1989] F.S.R. 617 the European Court of Human Rights held that search
orders do not infringe art.8 of the European Convention which gives an individual the rights to have
his private life and home respected.
214 Columbia Pictures Inc v Robinson [1987] Ch. 38. See also Systematica Ltd v London Computer
Centre Ltd [1983] F.S.R. 313 at 316–317; Lock International Plc v Beswick [1989] 1 W.L.R. 1268;
Universal Thermosensors Ltd v Hibben [1992] 1 W.L.R. 840.
215 Digital Equipment v Darkcrest Ltd [1984] Ch. 512; Columbia Pictures Inc v Robinson [1987] Ch.
38; Al-Rawas v Pegasus Energy Ltd [2008] EWHC 617 (QB); [2009] 1 All E.R. 346. See also, gener-
ally, Universal Thermosensors Ltd v Hibben [1992] 1 W.L.R. 840. The claimant may also be refused
costs: Systematica Ltd v London Computer Centre Ltd [1983] F.S.R. 313.
216 The new terminology is that laid down in CPR r.25.1(1)(f). See, generally S. Gee, Commercial
Injunctions, 6th edn (2016); M. Hoyle, Freezing and Search Orders, 4th edn (2006); A. Zucker-
man, “Interlocutory Remedies in Quest of Procedural Fairness” (1993) 56 M.L.R. 325; A. Zucker-
man, “Mareva Injunctions and Security for Judgment” (1993) 109 L.Q.R. 432. See also the standard
forms of freezing injunction set out as an Annex to the Practice Direction on Interim Injunctions,
CPR Pt 25 para.25PD (referred to below as the CPR Practice Direction).
217 With regard to what constitutes “rare circumstances”, it was thought important in Derby & Co Ltd
v Weldon [1990] Ch. 48 that on the facts an order affecting only assets in England and Wales might
for practical purposes be virtually useless. Similarly in the Republic of Haiti v Duvalier [1990] 1
Q.B. 202. Staughton LJ said, at 216–217: “What to my mind is determinative is the plain and admit-

[2181]
 INJUNCTIONS

freezing injunction”).218 Described by Lord Denning extra-judicially as “the great-

est piece of judicial law reform in my time”219 and by Donaldson LJ as “one of the
law’s two nuclear weapons”220 (the other being the search order)221 the purpose of
a freezing injunction is to prevent a defendant frustrating the satisfaction of a judg-
ment that the claimant may get against him. Prior to Mareva Compania Naviera SA
v International Bulkcarriers SA,222 in which this type of injunction was developed,
the basic rule was that a court could not give any form of security to a creditor until
judgment had been given in the creditor’s favour.223 Initially the jurisdiction to grant
a freezing injunction was seen as resting on the general statutory provision, now
the Senior Courts Act 1981 s.37(1), to grant injunctions where “just and conveni-
ent to do so”.224 Since then the jurisdiction (as regards assets within England and
Wales) has been put on a clear statutory footing by s.37(3) of the Senior Courts Act
1981, which has also confirmed that freezing injunctions are not restricted to be-
ing ordered against foreign defendants or to prevent the removal of assets from the
jurisdiction.225 In several cases it has been stressed that a freezing injunction oper-
ates in personam and not in rem and does not constitute full pre-trial attachment or
give priority over other creditors.226 Special principles have been developed to
govern freezing injunctions and the principles laid down in American Cyanamid Co

ted intention of the defendants to move their assets out of the reach of the courts of law, coupled
with the resources they have obtained and the skill they have hitherto shown in doing that, and the
vast amount of money involved. This case demands international cooperation between all nations.”
In Derby & Co Ltd v Weldon (No.3 & No.4) [1990] Ch. 65 Lord Donaldson MR thought that what
was meant was merely that a worldwide freezing injunction ought to be granted only when it was
really necessary.
218 Babanaft International Co SA v Bassatne [1990] Ch. 13; Republic of Haiti v Duvalier [1990] 1 Q.B.
202; Derby & Co Ltd v Weldon [1990] Ch. 48; Derby & Co v Weldon (No.3 & No.4) [1990] Ch. 65;
Morris v Mahfouz [1994] 1 W.L.R. 708; Mobil Cerro Negro Ltd v Petroleos de Venezuela SA [2008]
EWHC 532 (Comm); [2008] 2 All E.R. (Comm) 1034. Relevant undertakings are set out in Schedule
B to the standard form of worldwide freezing injunction, laid down in the Practice Direction. In
Derby & Co Ltd v Weldon (No.6) [1990] 1 W.L.R. 1139 it was recognised that in exceptional
circumstances an English court, as part of a worldwide freezing injunction, can order the transfer
of assets to a jurisdiction in which English judgments and orders are recognised from a jurisdiction
where they are not recognised. Apart from the very exceptional case, a freezing injunction granted
by an English court in support of a foreign judgment or arbitration award should be confined to as-
sets within, not outside, England and Wales; Rosseel NV v Oriental Commercial and Shipping (UK)
Ltd [1990] 1 W.L.R. 1387 CA. See Motorola Credit Corp v Uzan [2003] EWCA Civ 752; [2004] 1
W.L.R. 113 for the considerations to be taken into account in deciding whether to make a worldwide
freezing injunction under s.25 of the Civil Jurisdiction and Judgments Act 1982. For guidelines as
to the exercise of the court’s discretion to grant permission to enforce a worldwide freezing order
abroad, see Dadourian Group International Inc v Simms [2006] EWCA Civ 399; [2006] 1 W.L.R.
2499; [2006] 3 All E.R. 48. A post-judgment worldwide freezing order can be granted in aid of
English proceedings, as in Masri v Consolidated Contractors International UK Ltd (No.2) [2007]
EWHC 3010 (Comm); [2008] 1 All E.R. (Comm) 305; affirmed [2008] EWCA Civ 303; [2009] Q.B.
450. See generally L. Merrett, “Worldwide freezing orders in Europe” [2008] L.M.C.L.Q. 71.
219 The Due Process of Law (1980), p.134.
220 Bank Mellat v Mohammed Ebrahim Nikpour [1985] F.S.R. 87 at 92.
221 A freezing injunction and a search order can be granted together in one order.
222 [1975] 2 Lloyd’s Rep. 509.
223 Lister v Stubbs (1890) L.R. 45 Ch. D. 1. How far this remains the case is controversial: see now At-
torney General of Hong Kong v Reid [1994] 1 A.C. 324; and Sinclair Investments (UK) Ltd v
Versailles Trade Finance Ltd (In Administration) [2011] EWCA Civ 347; [2012] Ch. 453.
224 Senior Courts Act 1981 s.37(1). This remains important as the relevant source of the jurisdiction to
grant worldwide freezing injunctions.
225 This had been accepted prior to the Act in Prince Abdul Rahman v Abu-Taha [1980] 1 W.L.R. 1268.
226 e.g. Cretanor Maritime Co Ltd v Irish Marine Management Ltd (The Cretan Harmony) [1978] 1
W.L.R. 966; Iraqi Ministry of Defence v Arcepey Shipping Co [1981] Q.B. 65; Ninemia Maritime

[2182]
 INTERIM INJUNCTIONS

Ltd v Ethicon Ltd227 are inapplicable.228 A final introductory point is that, while the
two have tended to be merged in some cases, a preservation order,229 granted where
the claimant is seeking a proprietary remedy (most commonly a so-called “tracing
remedy”), is different from a freezing injunction and will be granted more readily.230

(i) A good arguable case

There are several essential prerequisites for the grant of a freezing injunction. 28-47
First, the claimant must show “a good arguable case”231 in a cause of action232
against the defendant. This is not as stringent a standard as that required for sum-

Corp v Trave Schiffahrtsgesellschaft GmbH (The Niedersachsen) [1983] 1 W.L.R. 1412; K/S A/S
Admiral Shipping v Portlink Ferries Ltd [1984] 2 Lloyd’s Rep. 166; cf. Z Ltd v A-Z [1982] Q.B. 558
at 573, per Lord Denning. For the same reason a freezing injunction covering realty is not registrable
as a land charge: Stockler v Fourways Estates Ltd [1984] 1 W.L.R. 25. It follows that payment out
to a secured creditor is not prohibited by a freezing injunction. No variation of the order is needed
to effect it, though if, out of an abundance of caution, such a variation is sought, it will not be refused:
Taylor v Van Dutch Marine Holding Ltd [2017] EWHC 636 (Ch); [2017] 1 W.L.R. 2571.
227 [1975] A.C. 396.
228 Polly Peck International Plc v Nadir (No.2) [1992] 4 All E.R. 769.
229 Made under CPR r.25.1(1)(c)(i), or in the exercise of the courts’ inherent equitable jurisdiction.
230 The distinction is most clearly brought out in Polly Peck International Plc v Nadir (No.2) [1992] 4
All E.R. 769 in which it was held that the American Cyanamid principles apply to a preservation
order. See also Investment and Pensions Advisory Service Ltd v Gray [1990] B.C.L.C. 38 (court may
be less willing to allow a variation if the claimant is asserting a proprietary tracing claim to the as-
sets which the defendant seeks to use for ordinary expenses). A further distinction between the
principles governing a freezing injunction, on the one hand, and a proprietary injunction (designed
to protect property in which the claimant alleges proprietary rights) on the other, was brought out
in Boreh v Republic of Djibouti [2015] EWHC 769 (Comm); [2015] 3 All E.R. 577 (given that the
former type of order is more draconian than the latter, it will be discharged and, on the facts, was
discharged—whereas the latter may not be and, on the facts, was not discharged—because of
deliberately misleading information provided to the court by the claimant’s solicitor). In Director
of the Assets Recovery Agency v Creaven [2005] EWHC 2726 (Admin); [2006] 1 W.L.R. 622 a freez-
ing order in support of a civil claim for asset recovery under Pt 5 of the Proceeds of Crime Act 2002
was held to be governed by similar principles to those applicable to a freezing injunction in sup-
port of a proprietary claim.
231 Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (The Pertamina)
[1978] Q.B. 644; Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft GmbH (The Nieder-
sachsen) [1983] 1 W.L.R. 1412.
232 In Siskina v Distos Compania Naviera SA (The Siskina) [1979] A.C. 210 it was held that an English
court must have jurisdiction over the main cause of action, but this was modified by s.25(1) of the
Civil Jurisdiction and Judgments Act 1982. By this, English courts were empowered to grant interim
relief when the action had been or was to be brought in a court within the EC (or, under the Lugano
Convention within the EEA) and the subject-matter of the action was within the scope of the Brus-
sels Regulation (now Regulation (EU) 1215/2012) (on which, see Crédit Suisse Fides Trust SA v
Cuoghi [1998] Q.B. 818). Section 25(2) recognised an express discretion to refuse relief on the
ground that the courts would formerly have had no jurisdiction. Under a power in s.25(3), the Civil
Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (SI 1997/302) further extended
the effect of s.25 of the 1982 Act to proceedings commenced, or to be commenced, otherwise than
in a Brussels or Lugano Contracting State and to proceedings outside the scope of the Brussels
Regulation (on the interpretation of which, see Royal Bank of Scotland Plc v FAL Oil Co Ltd [2012]
EWHC 3628 (Comm); [2013] 1 Lloyd’s Rep. 327). For a case in which s.25(2) of the Civil Jurisdic-
tion and Judgments Act 1982 was applied to refuse a freezing order in support of proceedings in the
USA, see United States of America v Abacha [2014] EWCA Civ 1291; [2015] 1 W.L.R. 1917. For
discussion of whether s.25(3) of the Civil Jurisdiction and Judgments Act 1982 allows freezing
injunctions to be ordered in aid of a foreign arbitration, see ETI Euro Telecom International NV v
Republic of Bolivia [2008] EWCA Civ 880; [2009] 1 W.L.R. 665.

[2183]
 INJUNCTIONS

mary judgment,233 but is higher than under American Cyanamid v Ethicon.234 The
cause of action is generally for the recovery of a debt or contractual damages or for
the return of money in a tracing action. But freezing injunctions have been granted
in respect of tort actions.235 It is essential, however, that the cause of action is one
for which the freezing injunction can afford some protection; hence a claim for a
declaration in the absence of any claim for an immediate money judgment cannot
ground a freezing injunction.236 In Fourie v Le Roux,237 it was held by the House
of Lords in discharging a freezing injunction that it was essential for the claimant
to point to proceedings already brought, or about to be brought, so as to show where
and on what basis he expects to recover judgment against the defendant. In Lord
Scott’s words: “I find it very difficult to visualise a case where the grant of a freez-
ing order, made without notice, could be said to be properly made in the absence
of any formulation of the case for substantive relief that the applicant for the order
intended to institute.”238 It is also essential that there is a pre-existing cause of ac-
tion so that a court cannot grant a conditional freezing injunction that will come into
effect if, as and when the cause of action that the claimant fears will arise does
arise.239

(ii) Real risk of defendant’s assets being disposed of

28-48 Secondly, the claimant should give some ground for believing that there is a real
risk of the defendant’s assets240 being disposed of so that a judgment or award in
favour of the claimant would remain unsatisfied.241 Where the defendant has as-
sets beyond what is needed to satisfy the claim the freezing injunction should be

233 Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (The Pertamina)
[1978] Q.B. 644; Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft GmbH (The Nieder-
sachsen) [1983] 1 W.L.R. 1412.
234 [1975] A.C. 396. See Polly Peck International Plc v Nadir (No.2) [1992] 4 All E.R. 769 at 786.
235 e.g. Allen v Jambo Holdings [1980] 1 W.L.R. 1252 (Fatal Accidents Act 1976 and personal injury);
Z Ltd v A-Z [1982] Q.B. 558 (conspiracy); Allied Arab Bank Ltd v Hajjar [1988] Q.B. 787
(conspiracy); VTB Capital Plc v Nutritek International Corp [2013] UKSC 5; [2013] 2 A.C. 337
(conspiracy); JSC BTA Bank v Ablyazov (No 5) [2015] UKSC 64; [2015] 1 W.L.R. 4754 (fraud).
236 Steamship Mutual Underwriting Assoc (Bermuda Ltd) v Thakur Shipping [1986] 2 Lloyd’s Rep. 439
CA; Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd’s Rep. 428.
237 [2007] UKHL 1; [2007] 1 W.L.R. 320.
238 [2007] UKHL 1; [2007] 1 W.L.R. 320 at [35].
239 Veracruz Transportation Inc v VC Shipping Co Inc and Den Norske Bank A/S (The Veracruz I) [1992]
1 Lloyd’s Rep. 353. See also Steamship Mutual Underwriting Assoc v Thakur [1986] 2 Lloyd’s Rep.
439 (Note). The Veracruz I is criticised by L. Collins, “The legacy of The Siskina” (1992) 108 L.Q.R.
175. In Re Q’s Estate [1999] 1 Lloyd’s Rep. 931 it was held that: (1) a court can grant a freezing
injunction in respect of a dispute that is to be referred to arbitration; and that (2) a freezing injunc-
tion can be granted prior to the accrual of a cause of action with its operation suspended until accrual.
See also Rowland v Gulfpac Ltd [1999] 1 Lloyd’s Rep. Bank. 86; Papamichael v National
Westminster Bank Plc [2002] 1 Lloyd’s Rep. 332. A freezing injunction can be granted in support
of a claim for contribution (even in favour of alleged fraudsters): Kazakhstan Kagazy Plc v Zhunus
[2016] EWCA Civ 1036; [2017] 1 W.L.R. 1360.
240 “Assets” includes money that may be acquired after the grant of the freezing injunction, such as the
proceeds of a life assurance policy: TDK Tape Distributor (UK) Ltd v Videochoice Ltd [1986] 1
W.L.R. 141. See also Cretanor Maritime Co Ltd v Irish Marine Management Ltd (The Cretan
Harmony) [1978] 1 W.L.R. 966. Under the extended definition of the defendant’s “assets” in the
modern form of freezing order, a defendant’s “assets” include the proceeds of loans paid into the
bank account of the defendant (so that the bank would be in breach of the freezing order by releas-
ing those proceeds): JSC BTA Bank v Ablyazov (No 5) [2015] UKSC 64; [2015] 1 W.L.R. 4754.
241 Third Chandris Shipping Corp v Unimarine SA [1979] Q.B. 645; Z. Ltd v A-Z [1982] Q.B. 558;

[2184]
 INTERIM INJUNCTIONS

limited to the maximum amount needed for satisfaction.242 A freezing injunction will
not knowingly be granted or continued in respect of assets owned solely243 by a third
party244 (though for obvious reasons a court is not bound to accept a third party’s
contention that the assets in question belong to it and not the defendant245). Where
an asset of the defendant is in the hands of a third party,246 or the third party is debtor
to the defendant so as to give rise to an asset in the latter’s hands potentially avail-
able to the claimant,247 then an injunction may be granted against the third party.

Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft GmbH (The Niedersachsen) [1983] 1 W.L.R.
1412; Montecchi v Shimco (UK) Ltd [1979] 1 W.L.R. 1180; Establissement Esefka International
Anstalt v Central Bank of Nigeria [1979] 1 Lloyd’s Rep. 445 CA. In the latter two cases there was
no such risk. In Polly Peck International Plc v Nadir (No.2) [1992] 4 All E.R. 769 it was explained
that the circumstances would have to be unusual for a freezing injunction to be granted against a
bank. On the appointment of an administrative receiver, a freezing injunction against a company
should normally be varied or discharged because there is no longer a risk of dissipation of the as-
sets to frustrate a judgment; Capital Cameras Ltd v Harold Lines Ltd [1991] 1 W.L.R. 54. In Mobil
Cerro Negro Ltd v Petroleos de Venezuala SA [2008] EWHC 532 (Comm); [2008] 2 All E.R.
(Comm) 1034 it was held that, to be relevant, the dissipation of assets must be by conduct that is
unjustifiable. The same test (that there must be a real risk of disposal) applies also to that form of
freezing order that is referred to as a “notification order”, i.e. an injunction that the defendant should
not dispose of assets without informing the claimant: Holyoake v Candy [2017] EWCA Civ 92;
[2018] Ch. 297.
242 Z Ltd v A-Z [1982] Q.B. 558. See also Ghoth v Ghoth [1992] 2 All E.R. 920 CA (which concerned
matrimonial proceedings). While a maximum sum is usually inserted, in JSC BTA Bank v Ablyazov
(No.2) [2009] EWHC 3267 (Comm); [2010] 1 All E.R. (Comm) 1040 the maximum sum (£175 mil-
lion) was limited to assets within England and Wales (i.e. the defendant was only free to deal with
assets abroad if assets within the jurisdiction remained above the maximum sum).
243 The courts are prepared to grant freezing injunctions in respect of joint property, such as bank
accounts: see Z Ltd v A-Z [1982] Q.B. 558. Indeed, it is now standard for orders to refer to assets
“whether they are solely or jointly owned”: see the form appended to Mostyn J’s judgment explain-
ing the underlying principles in UL v BK [2013] EWHC 1735 (Fam); [2014] Fam. 35.
244 SCF Finance Co Ltd v Masri [1985] 1 W.L.R. 876; Allied Arab Bank Ltd v Hajjar (No.2) [1988]
Q.B. 944. See also Prekookeanska Plovidba v LNT Lines SRL [1989] 1 W.L.R. 753 (money held in
a solicitor’s client account, for a client against whom judgment has been entered, and over which
the solicitor has a lien for unpaid costs, is to be excluded from the ambit of a freezing injunction).
It was once not the practice not to include assets held by the defendant as a bare trustee (Federal
Bank of the Middle East v Hadkinson [2000] 1 W.L.R. 1695); but today the practice is to include
them (JSC BTA Bank v Solodchenko [2010] EWCA Civ 1436; [2011] 1 W.L.R. 888).
245 See, e.g. SCF Finance Co Ltd v Masri [1985] 1 W.L.R. 876 (wife’s contention that bank account
did not contain defendant husband’s assets did not necessitate discharge of the freezing injunction).
246 TSB Private Bank International SA v Chabra [1992] 1 W.L.R. 231 (company holding assets argu-
ably the beneficial property of the defendant added as second defendant and made subject to a freez-
ing injunction; despite lack of cause of action against company, injunction treated as ancillary to main
proceedings). Similarly with the owner of property held on trust for the judgment debtor: Mercantile
Group (Europe) AG v Aiyela [1994] Q.B. 366. In Yukong Line Ltd v Rendsburg Investments Corp
[2001] 2 Lloyd’s Rep. 113 CA it was held that a freezing injunction might still be granted where
the defendant’s assets could not be specifically identified in the hands of the third party; in such
circumstances the order would cover the general assets of the third party up to the amount of the
defendant’s assets apparently held. But this cannot be used as a back-door way of sidelining separate
corporate personality, even if the holding company may de facto control its affiliate: Parbulk II AS
v PT Humpuss Intermoda Transportasi TBK [2011] EWHC 3143 (Comm); [2011] 2 C.L.C. 988 at
[42] (Gloster J).
247 See Parbulk II AS v PT Humpuss Intermoda Transportasi TBK [2011] EWHC 3143 (Comm); [2011]
2 C.L.C. 988 at [62] (Gloster J); also the decision of the High Court of Australia in Cardile v LED
Builders Pty Ltd [1999] HCA 18; (1999) 198 C.L.R. 380; and the Cayman Islands decision in
Algosaibi v Saad Investment Co Ltd (CICA 1 of 2010). Analogous is C Inc Plc v L [2001] 2 Lloyd’s
Rep. 459 (beneficiary of trust monies held by defendant amenable to order on basis of defendant
trustee’s right to indemnity). In Revenue & Customs Commissioners v Egleton [2006] EWHC 2313

[2185]
 INJUNCTIONS

(iii) Undertaking in damages

28-49 Thirdly, as with all interim injunctions the claimant should give an undertaking
in damages.248 Moreover, an undertaking should be given to indemnify any third
party for loss suffered as a result of complying with the freezing injunction249 (for
example, a bank’s administrative costs in locating the defendant’s account and is-
suing instructions regarding it). Normally further undertakings exacted are to is-
sue a claim form forthwith and to serve the defendant with copies of the order and
affidavit.250

(iv) Defendant’s business and living expenses or legal costs

28-50 A crucial restriction is that the order made should not prevent the defendant incur-
ring, in good faith, business or living expenses or legal costs: a freezing injunction
that has been granted may be discharged or varied accordingly to enable the defend-
ant to pay off debts or to meet reasonable living expenses.251 In Iraqi Ministry of
Defence v Arcepey Shipping Co252 the test applied was whether the money was
required for a purpose that did not conflict with the policy underlying the jurisdic-

(Ch); [2007] 1 All E.R. 606 the applicant for a freezing injunction was a creditor petitioning for the
winding up of a company for the company’s failure to pay VAT. It was held that a freezing injunc-
tion could be granted in respect of the assets of third parties who, although they were not holding
the company’s assets, were alleged to be debtors. However, in all normal circumstances, the applica-
tion for the freezing injunction should be brought by a provisional liquidator (who is charged with
deciding whether to pursue the company’s claims against alleged debtors) and not a petitioning
creditor. (The relevant cause of action, therefore, would be that of the company and not the petition-
ing creditor so that the “third party” objection would not arise.)
248 Third Chandris Shipping Corp v Unimarine SA [1979] Q.B. 645. The court should generally be sure
that the defendant is good for the undertaking and may insist on security; Ashtiani v Kashi [1987]
Q.B. 888. See Sch.B(2) of the standard forms annexed to the Practice Direction. cf. Allen v Jambo
Holdings Ltd [1980] 1 W.L.R. 1252. For consideration of whether there should be fortification of a
party’s undertaking in damages in support of a freezing injunction, see Energy Venture Partners Ltd
v Malabu Oil and Gas Ltd [2014] EWCA Civ 1295; [2015] 1 W.L.R. 2309. But if security was not
insisted on at the time the freezing injunction was granted it should not be ordered when the injunc-
tion has been discharged: Commodity Ocean Transport Corp v Basford Unicorn Industries Ltd (The
Mito) [1987] 2 Lloyd’s Rep. 197. For the approach to claims for damages enforcing the undertak-
ing see Cheltenham & Gloucester Building Society v Ricketts [1993] 1 W.L.R. 1545; and Fiona Trust
& Holding Corporation v Privalov (No. 2) [2016] EWHC 2163 (Comm); [2017] 2 All E.R. 570. But
a cross-undertaking may not be required of a public authority that seeks a freezing injunction in
exercise of its law enforcement function: Securities & Investment Board v Lloyd-Wright [1993] 4
All E.R. 210; United States Securities & Exchange Commission v Manterfield [2009] EWCA Civ
27; [2010] 1 W.L.R. 172. For the award of damages under the undertaking, see Al-Rawas v Pegasus
Energy Ltd [2008] EWHC 617 (QB); [2009] 1 All E.R. 346 above at para.28-43.
249 Searose Ltd v Seatrain (UK) Ltd [1981] 1 W.L.R. 894; Clipper Maritime Co of Monravia v
Mineralimportexport (The Marie Leonhardt) [1981] 1 W.L.R. 1262; Z Ltd v A-Z [1982] Q.B. 558;
Guinness Peat Aviation (Belgium) NV v Hispania Lineas Aereas SA [1992] 1 Lloyd’s Rep. 190.
250 Z Ltd v A-Z [1982] Q.B. 558. See also Sch.B(3) to the standard forms annexed to the Practice
Direction. In Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd’s Rep. 428 a freezing
injunction was discharged because, inter alia, no originating summons had been issued two months
after the grant of the freezing injunction.
251 Note a point of procedure. In Ocean Software Ltd v Kay [1992] Q.B. 583 CA, it was held that the
Court of Appeal does not have jurisdiction to entertain an application to discharge a freezing injunc-
tion which it had granted on appeal from a judge of the High Court. The application should be made
at first instance.
252 [1981] 1 Q.B. 65. See also Avant Petroleum Inc v Gatoil Overseas Inc [1986] 2 Lloyd’s Rep. 236;
Normid Housing Association Ltd v Ralphs & Mansell (Note) [1989] 1 Lloyd’s Rep. 274; Camdex
International Ltd v Bank of Zambia (No.2) [1997] 1 W.L.R. 632 CA; Customs and Excise Commis-

[2186]
 INTERIM INJUNCTIONS

tion to grant a freezing injunction: and it was held that it did not so conflict where
the defendant was “seeking in good faith to make payments which he considers he
should make in the ordinary course of business”.253 Similarly in PCW (Underwrit-
ing Agencies) Ltd v Dixon254 the freezing injunction was varied so as to allow the
defendant £1,000 per week for the expense of “living as he has always lived”,255
£27,404 for paying bills “such as he has always incurred”256 and £50,000 for the
legal costs of defending himself in the proceedings.257 On the other hand in A v B
(X Intervening)258 a third party failed to gain a variation releasing £400,000 so that
the defendant could honour cheques payable to the third party that had been
dishonoured prior to the freezing injunction because Parker J was not satisfied that
the payment was one “which would normally have been made out of such assets
had there been no injunction”.259 In general a variation will not be granted unless
the court is satisfied that the defendant has insufficient other assets, including
foreign assets,260 to pay his debts or expenses.261 But where the third party creditor
is itself the bank holding the defendant’s assets the court will vary the freezing
injunction at the instance of the bank without needing to be satisfied of the insuf-
ficiency of other assets, so as to allow the bank to exercise its usual contractual
rights of set-off in respect of facilities granted prior to the injunction.262 It should
be noted that the reasoning behind the “ordinary expenditure” exception is limited

sioners v Anchor Foods Ltd (No.2) [1999] 1 W.L.R. 1139; Nomihold Securities Inc v Mobile
Telesystems Finance SA [2011] EWCA Civ 1040; [2012] 1 All E.R. (Comm) 223.
253 [1981] 1 Q.B. 65 at 73.
254 [1983] 2 All E.R. 158. See also Law Society v Shanks [1988] 1 F.L.R. 504; TTMI Ltd of England v
ASM Shipping Ltd of India [2005] EWHC 2666 (Comm); [2006] 1 Lloyd’s Rep. 401 (freezing
injunction refused because defendant needed its only asset within the jurisdiction to pay for its legal
expenses).
255 [1983] 2 All E.R. 158 at 162. Lloyd J suspected that the claimant had put forward the wholly
unrealistic figure of £100 for living expenses in order to bring unfair pressure on the defendant to
settle.
256 [1983] 2 All E.R. 158 at 162.
257 cf. TDK Tape Distributor (UK) Ltd v Videochoice Ltd [1986] 1 W.L.R. 141; ordinary living expenses
do not include the high legal costs of engaging a QC to defend a criminal prosecution. It was clari-
fied in United Mizrahi Bank Ltd v Doherty [1998] 1 W.L.R. 435, that the expenses proviso does not
give the defendant (or third parties, e.g. solicitors, receiving the expenses from the defendant) im-
munity from liability for breach of trust, or knowing receipt, by paying or receiving those expenses.
258 [1983] Lloyd’s Rep. 532.
259 [1983] Lloyd’s Rep. 532 at 534. In Atlas Maritime Co SA v Avalon Maritime Ltd (The Coral Rose)
(No.1) [1991] 4 All E.R. 769 the Court of Appeal refused to vary a freezing injunction to allow the
defendant company to repay a loan to its parent company.
260 Ashtiani v Kashi [1987] Q.B. 888 at 901; see too Parvalorem v Oliveira [2013] EWHC 4195 (Ch);
and also the little-reported National Bank of Greece v Constantinos Dimitriou, The Times, 16
November 1987 CA.
261 A v C (No.2) [1981] Q.B. 961; PCW (Underwriting Agencies) Ltd v Dixon [1983] 2 All E.R. 158.
cf. Campbell Mussells v Thompson (1984) 81 L.S. Gaz. 2140. Although the defendant has no other
funds a freezing injunction will not be discharged to allow the payment of legal expenses if the court
is satisfied that funds will be made available by the defendant’s parent company to meet those
expenses: Atlas Maritime Co SA v Avalon Maritime Ltd (The Coral Rose) (No.3) [1991] 1 W.L.R.
917 CA.
262 Oceanica Castelana Armadora SA v Mineralimportexport (The Theotokos) [1983] 1 W.L.R. 1294.
Indeed Lloyd J thought that to avoid putting a bank to the trouble of applying for a variation freez-
ing injunctions ought to be worded so as to make clear that the bank has such rights. This is so in
the standard forms of freezing injunction annexed to the Practice Direction. A third party bank is
entitled to an unfettered variation to realise and dispose of assets covered by the freezing order, in
which it has a security interest, provided it is acting in good faith in the ordinary course of its
business: Gangway Ltd v Caledonian Park Investments (Jersey) Ltd [2001] 2 Lloyd’s Rep. 715. See
also Prekookeanska Plovidba v LNT Lines SRL [1989] 1 W.L.R. 753; the right of set-off in an order

[2187]
 INJUNCTIONS

to cases where the liability of the defendant has not been established. Once judg-
ment has been obtained, the claimant has a prima facie right to his money in any
event: it follows that from this point the exception applies, if at all, only to a very
limited extent.263

(v) Position of third parties

28-51 What is the effect of a freezing injunction on a third party (usually a bank) hold-
ing the defendant’s assets? In Z Ltd v A-Z264 it was emphasised that once a third
party holding the assets has notice of the injunction it is bound on pain of contempt
not to allow the defendant to remove assets contrary to the injunction. So that the
third party knows exactly what its obligations are, the order should identify the as-
sets with as much precision as possible.265 For example, in the case of a bank ac-
count it should if possible specify at which branch the defendant’s account is held
and the number of the account. The order should also make clear the amount of the
assets covered by the injunction and how much is to be allowed to be withdrawn
for, for example, normal living expenses.266 In some cases not involving banks the
potential inconvenience and loss to a third party holding the claimant’s assets has
been considered to be such that the freezing injunction has been discharged, rather
than forcing the third party to rely on the claimant’s undertaking as to damages.267
For worldwide freezing injunctions a special proviso is insisted on which is
designed to protect third parties (who are not subject to the jurisdiction of the
English court) in dealing with assets outside the jurisdiction.268 In Commissioners

includes the right of solicitors to recover unpaid costs from a client account.
263 Emmott v Michael Wilson & Partners Ltd [2019] EWCA Civ 219; [2019] 4 W.L.R. 53.
264 [1982] Q.B. 558. See also the standard forms of freezing injunction annexed to the Practice
Direction. cf. Law Society v Shanks [1988] 1 F.L.R. 504 where it was said that a third party holding
assets to the defendant’s order does not contravene the freezing injunction by handing them over to
the defendant unless it is known that the assets will be dissipated. See also Bank Mellat v Kazmi
[1989] Q.B. 541 (a debtor of the defendant with notice of the freezing injunction and of the prob-
ability that the defendant will not comply with it ought not to pay the debt directly to the defend-
ant); Lakatamia Shipping Co Ltd v Su [2014] EWCA Civ 636; [2015] 1 W.L.R. 291 (dealing by a
third party company may also be indirectly covered by a freezing injunction if the potential impact
of the dealings of that company is to diminish the value of the share-holding of the defendant in that
third party company).
265 See also the standard forms of freezing injunction annexed to the Practice Direction.
266 See also the standard forms of freezing injunction annexed to the Practice Direction.
267 Galaxia Maritima SA v Mineralimportexport (The Eleftherios) [1982] 1 W.L.R. 539 (defendant’s coal
on third party’s ship); Unicorn Shipping Ltd v Demet Navy Shipping Co Ltd [1987] 2 F.T.L.R. 109
(defendant’s bunkers on third party’s ship).
268 Derby & Co Ltd v Weldon (Nos 3 and 4) [1990] Ch. 65; see also the standard form of worldwide
freezing injunction annexed to the Practice Direction. cf. Babanaft International Co SA v Bassatne
[1990] Ch. 13; Republic of Haiti v Duvalier [1990] 1 Q.B. 202; Derby & Co Ltd v Weldon [1990]
Ch. 48. See also Ghoth v Ghoth [1992] 2 All E.R. 920 CA (which concerned matrimonial
proceedings). In Baltic Shipping Co v Translink Shipping Ltd [1995] 1 Lloyd’s Rep. 673 a further
proviso (going beyond that in Derby & Co Ltd v Weldon (No.3 & No.4) [1990] Ch. 65, which ap-
plies only to those who are not subject to the jurisdiction of the English courts) was inserted into a
freezing injunction to protect a bank from being in contempt of the English courts where it complies
with what it reasonably believes to be its legal obligations in the state where the assets are situated.
In Bank of China v NBM [2002] 1 W.L.R. 844, the Court of Appeal upheld David Steel J.’s deci-
sion that that further proviso (the Baltic proviso) should be included in a world-wide freezing order
unless inappropriate, rather than only included if appropriate.

[2188]
 INTERIM INJUNCTIONS

of Customs and Excise v Barclays Bank Plc269 it was held that no duty of care to
prevent payment out of accounts was owed by a bank to the claimants who had
obtained a freezing injunction against the bank’s customer. The bank was therefore
not liable to the claimants in the tort of negligence for mistakenly allowing money
to be paid out of the customer’s account in contravention of the freezing injunction.

(vi) Order for disclosure and interrogatories

With regard to ancillary relief in aid of a freezing injunction, the court may order 28-52
disclosure and interrogatories against the defendant270 or against a third party hold-
ing the defendant’s assets.271 This will most commonly be used to enable the claim-
ant to establish the whereabouts and amount of the defendant’s assets, including
foreign assets.272 But in Sociedade Nacional de Combustiveis de Angola UEE v
Lundqvist273 it was held that the defendants’ privilege against self-incrimination (for
conspiracy to defraud) meant that the order to state the value of his assets overseas
should be discharged. In contrast the order to state the nature and location of those
assets was upheld. Although the claimant will often give an undertaking not to use
the information obtained in any civil or criminal proceedings without the permis-
sion of the court, a court will not require exceptional circumstances before it will
grant such permission in respect of contempt proceedings for a failure to make full
disclosure.274

269 [2006] UKHL 28; [2007] 1 A.C. 181.

270 A v C [1981] Q.B. 956; Bekhor (AJ) & Co Ltd v Bilton [1981] Q.B. 923; Motorola Credit Corp v
Uzan [2003] EWCA Civ 752; [2004] 1 W.L.R. 113 (a disclosure order is prima facie the normal
provision where a freezing injunction is granted); JSC BTA Bank v Solodchenko [2011] EWHC 2163
(Ch); [2013] Ch. 1. See also the standard forms of freezing injunction annexed to the Practice
Direction. In House of Spring Gardens v Waite [1985] F.S.R. 173 it was held that the defendants
could be cross-examined on their affidavits. See also Bayer AG v Winter [1986] 1 W.L.R. 497 at 503,
per Fox LJ. But in Bayer AG v Winter (No.2) [1986] 1 W.L.R. 540 Scott J thought that no order for
cross-examination could be made without consent. In Bird v Hadkinson [2000] C.P. Rep. 21, it was
held that a disclosure order contained in a freezing injunction required the defendant not merely to
tell the truth but also to take reasonable steps to investigate the truth or otherwise of the answer.
271 Bankers Trust Co v Shapira [1980] 1 W.L.R. 1274. See also Mercantile Group (Europe) AG v Aiyela
[1994] Q.B. 366 (discovery in aid of a post-judgment freezing injunction ordered against a third party
who had become mixed up in her husband’s arrangements to defeat execution of the judgment
against him).
272 Babanaft International Co SA v Bassatne [1990] Ch. 13; Republic of Haiti v Duvalier [1990] 1 Q.B.
202; Derby & Co Ltd v Weldon [1990] Ch. 48; Derby & Co Ltd v Weldon (No.3 & No.4) [1990] Ch.
65. But, as shown in the Duvalier and Weldon cases above, an order for the disclosure of foreign
assets is normally conditional on the claimant giving an undertaking not to use the information in
proceedings abroad against the defendant without the leave of the English court. In Gidrxslme Ship-
ping Co Ltd v Tantomar-Transportes Maritimos Lda [1995] 1 W.L.R. 299 although the post-award
freezing injunction was confined to assets within the jurisdiction a disclosure order was made in
respect of worldwide assets.
273 [1991] 2 Q.B. 310 CA, noted by A. Zuckerman, “Mareva Injunction v The Privilege Against Self-
Incrimination” (1990) 106 L.Q.R. 389. See also United Norwest Co-operative Ltd v Johnstone, The
Times, 24 February 1994; Den Norske Bank ASA v Antonatos [1999] Q.B. 271 CA. For one limited
way around the privilege, see AT & T Istel Ltd v Tully [1993] A.C. 45 HL; see para.28-39 fn.191.
274 Dadourian Group International Inc v Simms (No.2) [2006] EWCA Civ 1745; [2007] 1 W.L.R. 2967.

[2189]
 INJUNCTIONS

(vii) Order for delivery up of goods and entry to premises

28-53 A defendant may also be ordered to deliver up goods or to allow the claimant to
enter his premises to seize goods in aid of a freezing injunction275 and in CBS (UK)
Ltd v Lambert276 several guidelines were laid down in deciding whether to grant
such an order. First, there should be clear evidence that the defendant is likely, un-
less restrained by order, to dispose of or otherwise deal with his chattels in order
to deprive the claimant of the fruits of any judgment he may obtain. Moreover, the
court should be slow to order the delivery up of property unless there is some
evidence or inference that the property has been acquired by the defendant as a
result of his alleged wrongdoing. Secondly, no order should be made for delivery
up of a defendant’s clothes, bedding, furnishings, materials or stock-in-trade likely
to be used in a lawful business—except that furnishings of great value bought for
the purposes of frustrating judgment creditors can be included in an order. Thirdly,
the order should specify as clearly as possible what chattel or classes of chattels are
to be delivered up. Fourthly, as with a search order, the order must not authorise the
claimant to enter on the defendant’s premises or to seize the defendant’s property
save by the defendant’s permission. Fifthly, no order should be made for delivery
up to anyone other than the claimant’s solicitor or a receiver appointed by the High
Court. Sixthly, so far as chattels held by third parties are concerned, the guidelines
set out in Z Ltd v A-Z277 should be followed. Finally, provision should always be
made for liberty to stay, vary or discharge the order. In some cases even more
extreme ancillary orders in aid of a freezing injunction have been discussed. In
Bayer AG v Winter278 the Court of Appeal, while primarily concerned with relief
ancillary to search order, did accept that additional injunctions restraining a defend-
ant from leaving the jurisdiction and ordering the surrender of his passport could
be granted where these were felt necessary to render freezing injunctions more
effective.

(viii) Full disclosure by claimant required

28-54 As with all ex parte injunctions the claimant must make full disclosure of all
material matters279 and in several cases freezing injunctions have been discharged

275 Johnson v L & A Philatelics Ltd [1981] F.S.R. 286. See also CBS (UK) Ltd v Lambert [1983] Ch.
37; although at 42 Lawton LJ referred to Stephenson LJ’s description in Bekhor (AJ) & Co Ltd v
Bilton [1981] Q.B. 923 at 955 of “piling Piller on Mareva” this order is probably better viewed as
similar to, rather than being, a true search order. The latter is designed to prevent the defendant
disposing of the claimant’s property or evidence relevant to his main action and is subject to
particular conditions reflecting that purpose: see para.28-35 onwards.
276 [1983] Ch. 37 at 44–45.
277 [1982] Q.B. 558.
278 [1986] 1 W.L.R. 497 CA; see too B v B (Passport Surrender: Jurisdiction) [1998] 1 W.L.R. 329. This
is normally the appropriate procedure, rather than using the antique and lumbering writ ne exeat
regno under the provisions of s.6 of the Debtors Act 1869. See Allied Arab Bank v Hajjar [1988]
Q.B. 787; and cf. Al Nahkel for Contracting and Trading Ltd v Lowe [1986] Q.B. 235.
279 Third Chandris Shipping Corp v Unimarine SA [1979] Q.B. 645. The test of a relevant matter for
these purposes is whether objectively speaking the facts could reasonably be regarded as material,
with materiality to be construed in a reasonable and not excessive manner: see the Irish decisions
in Bambrick v Cobley [2005] IEHC 43; and Camden Street Investments Ltd v Vanguard Property
Finance Ltd [2013] IEHC 478 at [48]. The duty of disclosure continues (i.e. the claimant must return
to court if material circumstances change) after the grant of the ex parte injunction; Commercial Bank

[2190]
 INJUNCTIONS AND DECLARATIONS AGAINST THE CROWN

for failure to comply with this requirement.280 But the courts are not bound to
discharge a freezing injunction for material non-disclosure and, even if they do, they
can grant a fresh one based on the facts existing at the time of the application to
discharge.281

(ix) Duty to continue with claim

The claimant who has been granted a freezing injunction is under a duty to press 28-55
on with the main action and the injunction will be discharged if this is not complied
with. In Town and Country Building Soc v Daisystar Ltd282 Farquharson LJ said:
“It is the duty of a litigant in a case where a Mareva injunction has been granted, to press
on with his claim so that the other party is subject to the order for the minimum amount
of time necessary and not kept in limbo. If such a litigant does not for any reason wish to
proceed with his claim, even temporarily, then he ought of his own motion to seek the
discharge of the injunction from the court.”

(x) Order after judgment

A freezing injunction can be granted after judgment to restrain a judgment debtor 28-56
from disposing of his assets pending execution.283 While such an injunction is not
interim in the usual meaning of the term, it has been regarded as interim and hence
as falling within s.37(3) of the Senior Courts Act 1981 because “it is not finally
determinative of the rights of the parties but is merely in aid of the court’s procedure
and safeguarding the rights of the parties in the proceedings”.284

6. INJUNCTIONS AND DECLARATIONS AGAINST THE CROWN

Section 21 of the Crown Proceedings Act 1947 provides that: “… where in any 28-57
proceedings against the Crown any such relief is sought as might in proceedings
between subjects be granted by way of injunction or specific performance, the court

of the Near East Plc v ABC and D [1989] 2 Lloyd’s Rep. 319.
280 Negocios del Mar SA v Doric Shipping Corp SA (The Assios) [1979] 1 Lloyd’s Rep. 331; Bank Mel-
lat v Nikpour [1985] F.S.R. 87; Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd’s Rep.
428; Dubai Bank Ltd v Galadari [1990] 1 Lloyd’s Rep. 120; Gulf Interstate Oil Corp v Ant Trade
& Transport Ltd of Malta, The Giovanna [1999] 1 Lloyd’s Rep. 867; Swift-Fortune Ltd v Magnifica
Marine SA, The Capaz Duckling [2007] EWHC 1630 (Comm); [2008] 1 Lloyd’s Rep. 54.
281 Yardley & Co Ltd v Higson [1984] F.S.R. 304 CA; Eastglen Int Corp v Monpare SA (1987) 137
N.L.J. 56; Lloyds Bowmaker Ltd v Britannia Arrow Holdings Plc [1988] 1 W.L.R. 1337; Brink’s-
MAT Ltd v Elcombe [1988] 1 W.L.R. 1350; Behbehani v Salem [1989] 1 W.L.R. 723; Ali & Fahd
Shobokski Group Ltd v Moneim [1989] 1 W.L.R. 710; Memory Corp Plc v Sidhu (No.2) [2001] 1
W.L.R. 1443 CA.
282 (1989) 139 N.L.J. 1563 CA. See also Comdel Commodities Ltd v Siporex Trade SA [1997] 1 Lloyd’s
Rep. 424 CA.
283 Orwell Steel Ltd v Asphalt & Tarmac (UK) Ltd [1984] 1 W.L.R. 1097; Hill Samuel & Co Ltd v Lit-
taur (No.2) (1985) 129 S.J. 433. See also Deutsche Schachtbau- und Tiefbohrgesellschaft MbH v
Ras Al Khaimah National Oil Co [1987] 3 W.L.R. 1023; Law Society v Shanks [1988] 1 F.L.R. 504;
Babanaft International Co SA v Bassatne [1990] Ch. 13. A freezing injunction may also be granted
in support of a costs order prior to taxation of costs: Jet West Ltd v Haddican [1992] 1 W.L.R. 487
CA. With regard to a freezing injunction to aid enforcement of an arbitration award, see Nomihold
Securities Inc v Mobile Telesystems Finance SA [2011] EWCA Civ 1040; [2012] 1 All E.R. (Comm)
223; Cruz City 1 Mauritius Holdings v Unitech Ltd [2014] EWHC 3704 (Comm); [2015] 1 Lloyd’s
Rep. 191.
284 Hill Samuel & Co Ltd v Littaur (1985) 135 N.L.J. 57 at 58, per Bingham J.

[2191]
 INJUNCTIONS

shall not grant an injunction or make an order for specific performance, but may
in lieu thereof make an order declaratory of the rights of the parties…”. While this
means that an injunction cannot be directly ordered against the Crown,285 it was
explained in the leading case of M v Home Office286 that an injunction, including
an interim injunction, can be granted against an officer of the Crown when sued in
his personal capacity and, in judicial review proceedings (to which s.21 does not
apply), when sued in his official capacity. As s.21 suggests, a claimant will com-
monly be equally satisfied with a declaration against the Crown and there is now
power to award an interim declaration.287

285 See Harper v Home Secretary [1955] Ch. 238; Merricks v Heathcoat-Amory [1955] Ch. 567;
Factortame Ltd v Secretary of State for Transport [1990] 2 A.C. 85 HL. But an interim injunction
can be granted against the Crown to protect the claimant’s directly effective European Community
rights: Factortame Ltd v Secretary of State for Transport (No.2) [1991] 1 A.C. 603 ECJ and HL. The
implementation of a decision by the Crown can be stayed pending judicial review of that decision;
R. v Secretary of State for Education and Science Ex p. Avon CC (No.2) [1991] 1 Q.B. 558: cf. R. v
Secretary of State for the Home Department Ex p. Muboyayi [1992] Q.B. 244.
286 [1994] 1 A.C. 377 HL.
287 CPR r.25.1(1)(b). For the suggested use of an interim declaration under CPR r.25.1(1)(b) to resolve
a bank’s dilemma in not wishing to pay money out to a customer suspected of fraud, see Bank of
Scotland v A Ltd [2001] 1 W.L.R. 751 CA; and for further clarification, Amalgamated Metal Trad-
ing Ltd v City of London Police Financial Investigation Unit [2003] EWHC 703 (Comm); [2003] 1
W.L.R. 2711. For the previous law, denying that the courts have power to grant interim declara-
tions, see International General Electric Co of New York Ltd v Commissioners of Customs and Excise
[1962] Ch. 784; R. v IRC Ex p. Rossminster Ltd [1980] A.C. 952.

[2192]