An application for an interim injunction – a court order requiring someone to do or not do something until a trial takes place – may be made ‘with notice’ or ‘without notice’ to the respondent. A ‘with notice’ application is served on the respondent at least 3 clear working days before the hearing takes place. A ‘without notice’ application is either not served on the respondent, or it is served less than 3 clear working days before the hearing.
The judgment in Apexmaster Ltd v URC Thames North Trust and Thorsnett Residential (“Apexmaster”) earlier this year is a useful reminder of some key pitfalls to avoid when pursing a without notice application.
Full and Frank Disclosure
When an application is made ’without notice’ the applicant has a duty of full and frank disclosure. This means an applicant must present all relevant facts to the Court, including ones that harm their case, to allow the court to make an informed decision. This does not apply to ‘with notice’ applications because the respondent has an opportunity to prepare and make their case themselves.
If a party doesn’t comply with the duty of full and frank disclosure, any order that is made may be dismissed and that party may be punished when it comes to the recovery of legal costs.
Overstating the case
A party should always put their best case forward. However, there is a difference between this and simply overstating the case – at a hearing for an interim injunction the latter will almost always come back to haunt an applicant.
At a final injunction hearing the court will likely have all the relevant information and be able to conduct a full investigation, so if an applicant has overstated their case at the interim hearing (particularly for a without notice application), they will come unstuck at the final hurdle and potentially face a large cost exposure as a result.
The court has little time for attempts to pressure another party into submission; parties should always correspond to the understanding that a judge may read what they are writing.
This was an issue criticised in Apexmaster and the courts general position is very usefully summarised in Excalibur Venture LLC v Texas Keystone Inc. and others:
“interminable and heavy-handed correspondence is becoming a perverse feature in some commercial litigation, it is not in any way to be accepted as a norm and parties whose solicitors engage in it should not be surprised if…they end up paying the costs on an indemnity scale.”
With or Without Notice?
Finally, whether a without notice application is actually necessary should be considered very carefully; bearing in mind the notice period is 3 clear working days. There has to be an exceptionally urgent need for a without notice injunction. In a party wall context, this means works will likely have already begun and be causing damage which has been verified by a surveyor. If there isn’t, the court may not grant the injunction, or the applicant may be penalised later when it comes to the recovery of costs.
At Morrisons, we specialise in obtaining and defending this type of application. If you have any questions about the topic raised above please contact a member of our team.