In the latest instalment of a continuing series, we offer advice on the issues that face solicitor-advocates


You have been asked to obtain an interim injunction on short notice to the defendant. Emergency remedies such as injunctions are ideally suited to solicitor advocacy and advocates are encouraged to cut their teeth in the High Court on these applications.


However busy you are likely to be, you must ensure that your retainer letter correctly identifies the contractual party. It is possible that the person you are acting for is not the person who is instructing you. In the case of a company you may, for instance, be acting for the employees on terms that the company is responsible for your costs. Your retainer letter must make this clear. Also check that your budgetary authority is sufficient and that you are in a position to give the usual undertaking to pay the defendant's costs.


The question of indemnities arises where the claimant and the paying party are not the same person. Advocates should check rule 25 1(1)(a) of the Civil Procedure Rules 1998 (CPR), which says: 'The court may grant ... an interim injunction' on the rules set out in CPR, rule 25. Check also section 37(1) of the Supreme Courts Act 1981, which says: 'The High Court may by order (whether interlocutory or final) grant an injunction ... in all cases in which it appears to the court to be just and convenient to do so'. In the case of Burris v Azadani [1995] 1 WLR 1372, the then Master of the Rolls, Sir Thomas Bingham, stated that section 37 is cast in the widest terms, although the claimant must show at least an arguable cause of action on the facts and in law. It is better to mount the claimant's case under a conventional cause of action.


Avoid 'undeveloped' law if at all possible.


Consider the 'just and convenience test' set out in American Cyanamid v Ethicon [1975] 1 ALL ER 508, HL. Does the claimant have a good arguable claim to the right that the claimant seeks to protect? Is there a serious question to be tried? Are you likely to persuade the court to exercise its discretion in favour of the claimant on the balance of convenience, that is, in favour of the granting of the injunction? If so, consider the pros and cons of the proposed injunctive relief and settle a draft order.


Remember that the court should not attempt to make a decision on the witness statements in the event of a conflict of evidence that can only be resolved at trial. Apply for an expedited trial if appropriate.


Remember that the court needs only to find that the claimants' cause of action has substance and reality. In Mothercare Ltd v Robson Books Ltd [1979] FSR 466, then Vice-Chancellor Megarry held: 'Odds against successes no longer defeat the plaintiff, unless they are so long that the plaintiff can have no expectation of success, but only a hope.'


Remember that there are special provisions concerning the right to freedom of expression under section 12(3) of the Human Rights Act 1998.


There is a restriction on without-notice applications where the burden of proof is ostensibly raised.


Consider the test in human rights cases. The court must have regard to the principles of proportionality or fair balance and must determine whether the aim of the injunctive relief can be achieved by means that are less restrictive of convention rights. Do any of the following apply to your case?


- Article 8 - respect for private life;

- Article 10 - freedom of expression;

- Article 11 - freedom of peaceful assembly and freedom of association;

- Protocol 1, article 1 - right to peaceful enjoyment of possessions.


Are you in a position to argue that the claimant is entitled to restrict the defendant's rights on any of the following grounds set out in the Human Rights Act?


- Necessary in a democratic society;

- In the interests of public safety;

- For the prevention of disorder or crime;

- For the protection of health or morals;

- For the protection of reputation or rights of others.


It is important to remember that all restrictions on convention rights must be proportionate to the legitimate aim pursued.


Do you need to use representative proceedings under CPR, rule 19.6? Do you need to use John Doe orders? These are orders against an unknown person - see Bloomsbury Publishing v Newsgroup News Papers (2003) The Times,


5 June (the Harry Potter case).


Do you need to obtain an order against unincorporated associations? If so, see CPR, rule 19.6. Do you need to obtain evidence from third parties? Consider CPR, rule 31.17. Careful thought will need to be given to obtaining third-party evidence in advance of a court order if the evidence is sensitive or is held by a public body. Also, consider section 35(2) of the Data Protection Act 1998, which makes otherwise confidential data exempt if it is to be used solely in connection with civil proceedings or to advise in connection with prospective civil proceedings.


It is better to consider obtaining orders on short notice to the defendant, rather than making an application without notice, which should only be done in exceptional cases. Two clear days' notice are normally required unless expressly abridged by the court.


Consider substituted service. You will need to place before the court evidence supporting any unusual applications, that is, urgency and substituted service. In Queens Bench cases, apply to court 37. In Chancery cases, apply to the interim applications court. In family cases, apply to the designated judge of the day. Note that freezing and search orders can only be made by the High Court. All other orders can be made in the county court.


Prepare a chronology and a short skeleton argument (supported by copies of all authorities relied on) for the use of the judge. Serve in reasonable time on the other side.


Remember that a large number of documents must be prepared to obtain a civil injunction. These include application notice on form N244 (you will need a separate N244 if you are applying for expedition or directions), draft orders supporting each application notice, a claim form on which you will need to endorse a human rights certificate, a particulars of claim (although this can follow within 14 days) and evidence in support of the application. In cases of urgency, an undertaking to serve a claim form can be given.


Injunctions normally involve far more work than can be readily anticipated. Additional costs are always incurred when urgency is involved. Most lay clients do not understand the bureaucracy involved in dealing with these kinds of application, and this needs to be explained.



This column was prepared by the Solicitors Association of Higher Court Advocates. For details of SAHCA, membership enquiries or advocacy questions, contact Hilary Riddle, SAHCA Administrator, tel: 01233 820676, or e-mail: hilary@hradmin.co.uk