Interim injunctions: flexible remedies or unprincipled powers?

It used to be thought that, to obtain an interim order from the court, a person needed a legal, or equitable, right to hang it on.

It’s now established in English law that this isn’t an absolute requirement. Most people would probably agree that the court shouldn’t be straitjacketed when responding to a problem before it. While flexibility is welcome, if the court’s power is unlimited, will its practice remain principled?

The cause of action

When a dispute resolution solicitor is considering bringing proceedings on behalf of a client, particularly from a claimant perspective, the first thing they look for is a ‘cause of action’. That might more popularly be referred to as a ‘claim’.

A defendant lawyer is also focused on this because, if a defendant’s first answer to the claimant is that there is no claim, that can be a complete answer. It may even render the claimant’s subsequent statement of case liable to be struck out on the defendant’s application.

A cause of action might sound technical, but the phrase betrays its simplicity. It’s been described as “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.

Examples people might think of include breach of contract, negligence, trespass and nuisance, though there are many more. English lawyers like legal taxonomy, hence the labels – these are, essentially, descriptions of violations of recognised rights.

The injunction

An injunction, at its most basic, is an order requiring a person to do something or refrain from doing something. It can be interim (an order to protect someone’s position pending a trial of their claim, at least traditionally) or final (an order obtained on determination of the claim at trial). It’s an equitable remedy, which means that even if someone can prove their claim, the court still has discretion over whether to grant such an order.

Historically perceived limitation

Subject to certain well-recognised exceptions, the orthodox position has been that the court had no power to grant an interim injunction unless it was ancillary to a cause of action, in the sense of a claim for a final order that the court had power to grant. That position has been steadily eroded, to the point where it no longer represents the law, as a very recent Court of Appeal (CofA) case shows.

Titan Wealth Holdings Limited and others v Marian Atinuke Okunola

First instance

During existing proceedings which Titan had brought against its former employee, Ms Okunola, for breach of contract, breach of confidence and harassment under the Protection from Harassment Act 1997 (PfHA), Titan sought a further order to stop her from:

• (a) Publishing any message to or about the claimants’ lawyers (or persons acting for them), which abused, belittled, demeaned or insulted them
• (b) Using profane or otherwise grossly offensive language or imagery in communications addressed or copied to the claimants’ lawyers.

This order was sought until further order “in relation to all proceedings” to which one of the claimants was a party.

When the application came before the first instance judge, it was held that the existence of a cause of action entitling the applicant to substantive relief was an “overriding requirement” for an injunction. The novelty of the application was that the claimants sought protections not for themselves but for their lawyers.

Since, in the first instance judge’s view, none of the exceptions to the cause of action rule applied to the situation, she dismissed the application. She said that if the claimants’ lawyers wished to restrain Ms Okunola from these communications, they’d need to apply for their own interim injunction.

Court of Appeal

Before the CofA, the single ground of appeal was that the judge was wrong to conclude she lacked the power to make the order sought, and should have concluded that the court could restrain the defendant from the alleged conduct aimed at Titan’s legal team, where that conduct interfered with the proceedings.

The CofA’s decision, in outline, was that the judge was indeed wrong to conclude that she lacked any power to grant the injunction sought. The cause of action rule hadn’t survived recent case law establishing that a cause of action isn’t always required for interim injunctive relief. The court can act in the interests of justice to restrain conduct serious enough to threaten the integrity of its own process.

While Titan weren’t alleging that they themselves were being harassed for the purpose of the application, they were a claimant in proceedings already before the court, and the defendant’s harassment of their legal team threatened the integrity of those proceedings. That was a sufficient basis for such an order, even without a traditional cause of action.

The CofA gave guidance for future cases: where an injunction is sought to restrain specific misconduct within the proceedings, the applicant needs to show a threat, or at least a real prospect, of serious misconduct creating a material risk of interference with the integrity of the court’s process or proceedings. If the misconduct wouldn’t amount to contempt, the court must consider article 10 and section 12 of the Human Rights Act 1998 on the one hand, and the immunity from proceedings that attaches to statements made in the course of litigation on the other hand.

While the CofA accepted that the court’s power wasn’t constrained by the cause of action rule in the way the first judge thought it was, the fact that the affected lawyers could have brought their own claims against the defendant under the PfHA is relevant.

In the end, the CofA considered that, while such an injunction ‘could’ have been granted on the facts of this case, the first instance judge was right to refuse to make the order sought because it was too broad in terms. It wasn’t appropriate to make any such order when the matter came before the CofA because the defendant’s conduct had ceased.

Significance of the decision

It might be considered an academic exercise if the CofA decided that the court has the power to make such an order, but that on this occasion it was right to refuse to make the order. The decision has wider ramifications than just this case however.

What this case has done, subject to appeal, is cement the fact that an applicant for an interim injunction doesn’t always need a cause of action to obtain such an order from the court. That’s ironic, given the widely accepted definition of a cause of action as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.

The court is showing its adaptability in recognising its power to grant orders where, traditionally, litigants may previously have assumed it lacked the power to do so. While the circumstances of this case may be rare, if the court’s power isn’t always constrained by an existing cause of action, the immediate question becomes: in what circumstances is a cause of action unnecessary, beyond the already recognised exceptions to the rule?

The categories of novel interim orders aren’t necessarily closed. While that may introduce a certain amount of unpredictability, particularly for advisers, one thing is certain: when the court opens a door, lawyers will push it.