The modern concept of standalone injunctions

It is well established that the courts have jurisdiction to grant injunctions under section 37 of the Supreme Court Act 1981 (SCA). For many years, Lord Diplock’s judgment in Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210, where he said ‘a right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own’ (page 256), was considered to be one of the foundations of the jurisdiction to grant injunctive relief. Since Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24, the law and practice of the granting of injunctions has evolved to recognise that injunctions need not be ancillary to a cause of action. 

The Privy Council in Broad Idea decided by a majority that ‘where the court has personal jurisdiction over a party, the court has power – and there is no principle or practice which prevents the exercise of the power – to grant a freezing injunction (or other interim injunction) against that party to assist enforcement through the court’s process of a prospective (or existing) foreign judgment’ (see paragraph 121). ‘What in principle matters,’ Lord Leggatt said in paragraph 92, ‘is that the applicant has a good arguable case for being granted substantive relief in the form of a judgment that will be enforceable by the court from which a freezing injunction is sought.’

Referring to Diplock’s endorsement in Siskina at paragraph 256 of the principle that ‘the High Court has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment’, Lord Leggatt said in paragraph 52: ‘There can be no objection to this proposition in so far as it signifies the need to identify an interest of the claimant which merits protection and a legal or equitable principle which justifies exercising the power to grant an injunction to protect that interest by ordering the defendant to do or refrain from doing something.’

Considering that the essential purpose of a freezing injunction is to facilitate the enforcement of a judgment or other order to pay money, it is then clear that there is no reason in principle to link the granting of an injunction to the existence of a cause of action.

Injunctive relief is one of the key tools in combating fraud and ensuring there are assets remaining at the end of the case to enforce against. Although not binding on the English courts, Broad Idea has been cited and applied in standalone injunction applications sought without proceedings for substantive relief. These include the following cases.

Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312

The Court of Appeal considered that it should follow the majority decision in Broad Idea unless persuaded otherwise. It regarded ‘Lord Leggatt’s analysis as compelling and unanswerable’. Broad Idea therefore represented the law of England and Wales as to the circumstances in which the court may grant an injunction and was therefore to be followed.

The Court of Appeal held Broad Idea to have established that the grant of an injunction under section 37(1) of the SCA depends on two requirements being met, namely: ‘(i) an interest of the claimant which merits protection and (ii) a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something’, and there is a ‘general principle that a court may grant ancillary orders, including injunctive orders, to ensure that its orders are effective’ – see paragraphs 55-61, 69 and 71.

Bacci v Green [2022] EWCA Civ 1393

A judgment creditor was seeking to satisfy a judgment from pension rights to which the bankrupt debtor was entitled.  The judgment arose out his deceit and dishonesty and so in the circumstances, the debt had persisted beyond the debtor’s discharge from bankruptcy. The court granted an injunction to creditors seeking to enforce a judgment debt over a discharged bankrupt’s pension commencement lump sum and lifetime allowance excess lump sum which would have involved the power to revoke ‘enhanced protection’ to the pension rights.  This was held to be a legitimate right which merited protection. The court considered that it was possible and said that ‘it [was] plain from Broad Idea that the power to grant injunctions… can be developed incrementally’ (paragraph 25).

Kaye v Lees [2023] EWHC 758 (KB)

The court did not consider the judgment creditor to have a sufficient legitimate right which merited protection from restraining the judgment debtor from making an application in accordance with their statutory rights to a debt advisor for a mental health moratorium.

Applying the test set out above from Re G, the court found that the creditor did not have a legitimate right to proceed with enforcement of a judgment without having to face the risk that the debtor would seek and may be granted a moratorium under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020. Such an order would seek to constrain the rights of the debtor as given to him or her by parliament under the regulations in a way that is not permitted by the regulations. As such, there was no interest which merits protection.

Hunt v Ubhi [2023] EWCA Civ 417

The provisional liquidator of an allegedly insolvent partnership had obtained a freezing order against one of the alleged partners to prevent him from dissipating assets so as to frustrate a future call on those assets by the liquidator of the partnership. Neither the provisional liquidator nor the alleged partnership had any cause of action against the alleged partner which would support a freezing injunction. It was argued by the provisional liquidator that this did not matter in light of Broad Idea and Re G, but Snowden LJ said that the issues in the case raise important questions relating to freezing injunctions and insolvency law and practice which needed more detailed consideration. The injunction in this case had been set aside on other grounds so no further consideration was given.

The future  

English courts have been granting standalone injunctions for quite some time including post-judgment freezing orders and Chabra injunctions. Since Broad Idea and Re G, it is still necessary to have a right which requires protection so the existence of a substantive cause of action will still be relevant in most instances. Clearly, the courts have been willing to move on from Siskina and focus more on the rights to be protected rather than the underlying causes of action. Certainly, this is a positive step from the perspective of enforcement and, as the cases have shown, in relation to the categories of rights which the courts are willing to protect.

Natalie Todd is a partner at Cooke, Young & Keidan and London Solicitors Litigation Association committee member