CIVIL LITIGATION — UNIT 7

Interim Applications and Interim Injunctions

BSB Syllabus Areas 15 (Interim Applications) & 17 (Interim Injunctions) | CPR 23.1–23.12; PD23A paras 2–7 |
CPR 25.1–25.3; CPR 25.8–25.9 | SCA 1981 s.37 | WB Vol 2 paras 15-4, 15-7 to 15-8, 15-9.1, 15-10 to 15-15, 15-
17 to 15-18, 15-20, 15-24 to 15-27, 15-30 | American Cyanamid Co v Ethicon Ltd [1975] AC 396 | N16A (General
Form of Application for Injunction)
Section 1 — Interim Applications: CPR Part 23 (Full Text with
Commentary)
CPR Part 23 provides the general rules about applications for court orders. It applies to ALL interim applications —
including applications for interim injunctions, interim payments, freezing orders, search orders, and any other interim
remedy — unless a specific rule provides otherwise. Before reading the substantive law on injunctions (Sections 4–8
below), master Part 23 procedurally.

1.1 — Definitions: CPR 23.1

CPR r.23.1 — Three Essential Definitions

RULE TEXT
In this Part: "Application notice" means a document in which the applicant states their intention to seek a
court order.

"Hearing" means any occasion on which any interim or final decision is or may be made by a judge, at
which a person is, or has a right to be, heard — whether in person, by telephone, by video, or by any other
means which permits simultaneous communication.

"Respondent" means: (a) the person against whom the order is sought; AND (b) such other person as the
court may direct.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

"Application notice" = Form N244. This is the document that triggers the application — it is the "notice" in
one of the three senses of that word under Part 23.

"Respondent" does NOT automatically mean every other party to the proceedings. It means specifically:
the person against whom the order is sought, plus anyone the court directs. Not all parties need to be
served with every application — only those who are "respondents" to that particular application.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP — QUESTION 2: Either party may be the Applicant. The Applicant is the party MAKING the
application, regardless of whether they are the Claimant or Defendant in the proceedings. The Respondent
is the party against whom the order is sought, again regardless of their role in the main proceedings.
CORRECT ANSWER: [C].

EXAM TRAP — Q3: Under the strict terminology of Part 23, "notice" describes TWO things: (i) the
Application Notice itself (Form N244) — CPR 23.3; AND (ii) the minimum period of 3 clear days between
serving the N244 on the other party and the date of the hearing — CPR 23.7(1)(b). "Informing the other
party less than 3 clear days before the hearing" is NOT "notice" in the Part 23 sense. CORRECT
ANSWER: [B].

1.2 — Where to Make an Application: CPR 23.2 (Full Rule with Commentary)

CPR r.23.2 — Where to Make an Application

 RULE TEXT
(1) A party may make an application to the court where the claim is being dealt with.

(2) If the claim has been sent to a hearing centre other than the one in which it was started, a party may
make an application to either the hearing centre where the claim is being dealt with OR the hearing centre
where it was started — unless there is a good reason to apply to another hearing centre.

(3) If the parties have been notified of a fixed date for the trial, an application MUST be made to the
COURT WHERE THE TRIAL IS TO TAKE PLACE.

(4) If the application is made before a claim has been started, it should be made to the court where the
claim is most likely to be started — UNLESS there is a good reason to apply to a different court.

(5) If the application is made in the County Court before a claim has been started, it may be made to any
County Court hearing centre — unless an enactment, rule, or PD provides otherwise.

(6) If the application is made after judgment has been given, it should be made to the court which gave the
judgment — unless an enactment, rule, or PD provides otherwise.

PD23A PARA 5A.1: If the claim was started in the CIVIL NATIONAL BUSINESS CENTRE (CNBC), an
application made after the claim has been started must be made to the CNBC OR the County Court
hearing centre where the claim is being dealt with.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

The fundamental rule is: apply to the court CURRENTLY DEALING WITH THE CASE. Once a claim is
transferred, the transferee court is the appropriate venue.

r.23.2(3) OVERRIDES the general rule: once a trial date is fixed and the parties have been notified, ALL
applications MUST go to the trial court — regardless of where the claim is being administered.

QUESTION 1 (WORKSHOP): Hannah v Pavan. Claim started at CNBC → transferred to Birmingham →

trial listed at Wrexham. Hannah wishes to make an application. WHERE should she apply?
• ANSWER: WREXHAM County Court Hearing Centre — CPR 23.2(3). The parties have been notified
of a fixed trial date at Wrexham → all applications MUST be made to the trial court.
• [B] CNBC: WRONG — the claim has been transferred and a trial date fixed. r.23.2(3) overrides
PD23A para 5A.1 once a trial date is fixed and notified.
• [C] Birmingham: WRONG — Birmingham is the hearing centre dealing with the claim, but r.23.2(3)
requires application to the trial venue once a trial date is fixed and parties notified.
• [D] Coventry: WRONG — wholly irrelevant to any rule in CPR 23.2.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: PD23A para 5.1 (CNBC): an application after a claim started in the CNBC must go to the
CNBC OR the hearing centre where the claim is being dealt with. BOTH options are available — NOT just
the CNBC. Therefore Q5 option [C] ("can ONLY be made to the Civil National Business Centre") is
INCORRECT. CORRECT ANSWER Q5: [C] is the INCORRECT statement.

1.3 — Application Notice Must Be Filed: CPR 23.3 (Full Commentary)

CPR r.23.3 — Application Notice Must Be Filed

 RULE TEXT
(1) A party who wants to make an application MUST file an application notice (Form N244).

(2) An applicant MAY make an application WITHOUT filing an application notice if: (a) it is not possible to
file an application notice because of the urgency of the matter; and (b) the applicant then makes an
application to file an application notice at the hearing; OR where a rule or PD permits it.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

The GENERAL RULE is that an application notice must be filed. The primary exception is genuine
urgency. The court will also dispense with an application notice where: the parties are already before the
court and the judge permits an oral application; exceptional urgency prevents filing in advance; or the
overriding objective is best furthered by doing so.

WARNING: Djurberg v Thames Water [2024] EWCA Civ 549 — the Court of Appeal overturned a striking-
out where none of the procedural requirements in rr.23.3, 23.7, 24.4(5), and 24.5 had been observed. The
court should exercise CAUTION about dispensing with procedural requirements, ESPECIALLY where one
party is a litigant in person.

QUESTION 1 (ASSESSMENT): Which ONE is NOT generally required when making an application under
CPR Part 23? CORRECT ANSWER: [B] — Permission of the court to make the application. Reasons:
Applications can be made without court permission — the whole point is to keep courts running smoothly.
Permission would create administrative gridlock. [A] application notice = required (r.23.3). [C] evidence in
support = required (r.23.7(2) and (3); PD23A para 7). [D] draft order = required (r.23.7(3)(b)).

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: Permission is NOT generally required to make an application. This is probably the most
commonly-tested point in the whole of Part 23. Whether the application is contentious or not, the applicant
does not need the court's leave to bring it. [B] is therefore the only thing NOT required.

1.4 — Notice of an Application: CPR 23.4

CPR r.23.4 — Service on Respondents

RULE TEXT
(1) The applicant MUST serve a copy of the application notice on EACH respondent, unless a rule, PD, or
court order permits otherwise.

(2) The applicant must serve the application notice as soon as practicable after it is filed, and in any event
— unless the court directs otherwise — at least 3 CLEAR DAYS before the court is to deal with the
application.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

"Each respondent" under r.23.4(1) means those within the r.23.1 definition: (a) the person against whom
the order is sought; AND (b) such other person as the court may direct. It does NOT automatically mean
every other party to the proceedings.

The obligation to serve arises IMMEDIATELY after filing — as soon as practicable. Filing and service are
separate steps but must both be taken.
 EXCEPTIONS, LIMITS AND EXAM TRAPS
EXCEPTION: A without-notice application under CPR 25.3(2) and PD23A para 3 proceeds WITHOUT
service on the respondent. But the requirement to serve documents and the note of the hearing on the
respondent AFTER the order is made (CPR 25.8 and 23.9) is mandatory.

1.5 — Contents of Application Notice: CPR 23.6 and PD23A Para 2.1

CPR r.23.6 and PD23A Para 2.1 — What the Application Notice Must Contain

RULE TEXT
r.23.6: The application notice MUST state: (a) what order the applicant is seeking; and (b) briefly, why the
applicant is seeking the order.

PD23A PARA 2.1 — ADDITIONAL REQUIREMENTS: The application notice must be:
• Signed by the applicant or their legal representative;
• State the TITLE of the claim;
• State the REFERENCE NUMBER of the claim;
• State the FULL NAME of the applicant;
• If the applicant is not already a party: include their ADDRESS FOR SERVICE including postcode;
• Either a REQUEST FOR A HEARING or a request that the application be DEALT WITH WITHOUT
A HEARING.

PD23A PARA 2.1 — DRAFT ORDER: A draft order in the terms sought MUST be attached. For injunction
applications: use Form N16A (General Form of Application for Injunction).

PD23A PARA 2.5: Every application should be made as soon as it appears NECESSARY or DESIRABLE
to make it.

PD23A PARA 2.6: Applications should wherever possible be timed to be heard at a HEARING ALREADY
FIXED or about to be fixed.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

The "request for a hearing OR paper determination" requirement under PD23A para 2.1 is a SPECIFIC PD
requirement that is frequently examined. An application notice that does not state one of these options is
defective.

A draft order in the terms sought should ALWAYS be attached. For interim injunction applications: Form
N16A is the prescribed form. The N16A reproduced in these materials shows the structure: whether by
application in pending proceedings or under statutory provision; whether it raises Human Rights Act issues;
who the applicant and respondent are; the mandatory act sought (mandatory injunction) and the prohibition
sought (prohibitory injunction); the cross-undertaking; the return date; the names of those upon whom it is
to be served; address for service.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EVIDENCE RULE (r.32.6): General rule at hearings other than trial = WITNESS STATEMENT. A party
may alternatively rely on their verified STATEMENT OF CASE or verified APPLICATION NOTICE as
evidence. The latter two options are only available if verified by a statement of truth.

PD23A PARA 7.5: The CONTENTS OF AN APPLICATION NOTICE may be used as EVIDENCE
 (otherwise than at trial) provided the contents have been verified by a statement of truth. CORRECT Q5[D]
= TRUE STATEMENT.

1.6 — When an Application Is "Made": CPR 23.5

CPR r.23.5 — Application Is Made When RECEIVED by the Court

RULE TEXT
Where an application must be made within a specified time, it is made when the application notice is
RECEIVED by the court in time — even if it is not issued or date-stamped until a later date.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

This is critically different from the deemed service rules for claims. The application is "made" — for the
purpose of any deadline — when the court actually RECEIVES the application notice. Not when it is issued
(date-stamped). Not when it is served on the respondent.

KEY CASE: Hallam Estates v Baker [2014] EWCA Civ 661: where a document is received on one day but
not date-stamped until the next, it is received on the earlier day (the day of actual receipt).

QUESTION 3 (ASSESSMENT): "If the court directs that an application is made by 28 March 2025, what
does this mean?" CORRECT ANSWER: [C] — the application must be RECEIVED by the court by 28
March 2025.
• [A] "Date stamped by 28 March": WRONG — date-stamping can occur after actual receipt; what
matters is receipt.
• [B] "Issued by 28 March": WRONG — issued = date entered on the form; the court's receipt of the
document precedes its formal issue.
• [D] "Served on respondent by 28 March": WRONG — service on the respondent is governed by
r.23.7, not r.23.5; service has nothing to do with when the application is "made."

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: Compare r.23.5 (application "made" when received by court) with r.7.2(2) (claim form
"issued" when date entered by court). They are different trigger events. Proceedings are "started" when the
claim form is issued; an application is "made" when the application notice is received.

1.7 — Service of the Application Notice: CPR 23.7 (Key Service Rule)

CPR r.23.7 — Service Requirements: The 3-Day Rule

RULE TEXT
(1) A copy of the application notice: (a) MUST be served as soon as practicable after it is filed; AND (b)
except where another time limit is specified in these Rules or a PD, must in any event be served AT
LEAST 3 DAYS BEFORE the court is to deal with the application.

(2) The applicant must serve the following with the application notice: (a) a copy of any written evidence in
support; and (b) a copy of any draft order.

(3) If the applicant has already filed evidence or seeks to rely on the draft order attached to the application
 notice, this should be stated in the notice.

(4) The court may deal with an application even if the respondent has not been given sufficient notice —
but before it does so, it may: (a) give additional time for the other party to prepare; or (b) direct the
application be served and heard on a later occasion.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

The 3-day rule uses CLEAR DAYS (CPR 2.8(2)–(3)): neither the day of service NOR the day of the hearing
is counted.

QUESTION 4 (ASSESSMENT): Application listed for Wednesday 4 June 2025. Last day to post by:
• Count back 3 CLEAR DAYS from the hearing date. Hearing = Wednesday 4 June.
• Day on which event occurs (hearing) NOT counted. Count back: Tuesday 3 June (day 1), Monday 2
June (day 2), Friday 30 May (day 3).
• The application must therefore be deemed served by Thursday 29 May (the day BEFORE the first
clear day).
• Service by FIRST CLASS POST: deemed served on the SECOND DAY after posting (CPR 6.26).
To be deemed served on Thursday 29 May, must be POSTED on Tuesday 27 May.
• CORRECT ANSWER: [D] Tuesday 27 May 2025.

PD23A PARA 4: Where notice should be given but there is INSUFFICIENT TIME, the applicant should give
INFORMAL NOTIFICATION to the other party — UNLESS secrecy is required. "Informal notification" is not
the same as "giving notice" in the formal Part 23 sense.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXCEPTIONS TO THE 3-DAY RULE — WHERE SHORTER (OR NO) NOTICE IS PERMITTED:

PD23A PARA 3 — SEVEN CIRCUMSTANCES: An application may be made without serving an

application notice (or with less than 3 days' notice) in the following circumstances:
• (1) EXCEPTIONAL URGENCY;
• (2) OVERRIDING OBJECTIVE best furthered by doing so;
• (3) CONSENT of all parties;
• (4) PERMISSION of the court;
• (5) ADDRESS PROTECTION — applicant is seeking direction that their address not be provided to
a party;
• (6) PD23A para 2.8 applies — hearing date fixed, insufficient time to serve, oral application made;
• (7) A court order, rule, or PD permits.

QUESTION 4 (ORIGINAL Q-SHEET): "Which circumstances are exceptions to the 3-day rule?" ALL FIVE
listed are exceptions: (i) exceptional urgency; (ii) need for secrecy [= overriding objective (2)]; (iii) court
permits; (iv) parties consent; (v) court order/rule/PD permits. CORRECT ANSWER: [D] — all of them.
NOTE: "Need for secrecy" does not appear specifically in PD23A para 3 — but it is an instance of the
overriding objective which appears at position (2) in the list. The court would treat secrecy as a good
reason under (2).

1.8 — Applications Without a Hearing: CPR 23.8

CPR r.23.8 — Applications Without a Hearing

 RULE TEXT
The court may deal with an application without a hearing if: (a) the parties AGREE to the terms of the order
sought; (b) the parties AGREE to dispense with a hearing; or (c) the court does NOT CONSIDER THAT A
HEARING WOULD BE APPROPRIATE — the court has given the applicant an opportunity to request a
hearing and the applicant has not done so.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

THREE ROUTES — with different consequences:

(a) Parties agree terms → CONSENT ORDER → court officer can seal. If final order, only route to
challenge is permission to appeal.

(b) Parties agree to dispense with a hearing → the party may NOT apply to set aside, vary, or stay
WITHOUT THE COURT'S PERMISSION. If a final order and party is dissatisfied: must seek permission to
appeal.

(c) Court decides no hearing appropriate (r.23.8(1)(c)) — without giving parties opportunity to make
representations → affected party may apply to set aside, vary, or stay within: (i) specified period in the
order; OR (ii) 7 DAYS after service of the order if no period specified. The order MUST contain a statement
of this right. The application must normally be at an ORAL HEARING — unless the court states the
application is totally without merit.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: Routes (b) and (c) have DIFFERENT consequences. Under (b), a party who agreed to
dispense with a hearing cannot apply to set aside without permission. Under (c) — where the court acted
on its own — the party can apply as of right within 7 days. Always identify which route was used.

1.9 — Service After Without-Notice Order: CPR 23.9 and Setting Aside: CPR 23.10

CPR r.23.9 and r.23.10 — Without-Notice Orders: Service and Set-Aside

RULE TEXT
r.23.9(1): Where the court has disposed of an application MADE WITHOUT NOTICE (whether granting or
dismissing it): a copy of the APPLICATION NOTICE and any SUPPORTING EVIDENCE MUST be served
WITH THE ORDER on any party against whom the order was made or sought — UNLESS the court orders
otherwise.

r.23.9(2): The order MUST contain a statement of the right to apply under r.23.10.

r.23.10(1): A person who was not served with the application notice before the order was made MAY apply
to have the order set aside or varied.

r.23.10(2): The application MUST be made within 7 DAYS after the date on which the order was served on
the person making the application — UNLESS the court directs otherwise.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

These two rules work together: (1) after a without-notice order is made, the applicant must serve the
respondent with all the material (application notice + evidence + order); (2) the respondent then has 7 days
from service of the order to apply to set it aside.
 The 7-day period is from service of the ORDER — not service of the application notice. This is because the
respondent had no opportunity to be heard before the order was made, so the clock starts running from
when they learn what was ordered.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: The 7-day set-aside period runs from service of the ORDER on the respondent. The order
MUST contain a statement of the right to apply — if it does not, the respondent is not bound by the 7-day
period.

1.10 — Absence of a Party: CPR 23.11

CPR r.23.11 — Absence of a Party at the Application Hearing

RULE TEXT
(1) Where a party to an application hearing is absent, the court may: (a) PROCEED in their absence;
and/or (b) RE-LIST the application (on application or on its own initiative).

(2) When the application is re-listed, the court may GIVE SUCH DIRECTIONS as it thinks fit.

Re-listing should be exercised SPARINGLY — only where just to do so having regard to the overriding
objective and the interests of the other parties.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

The court has a CHOICE — it need not proceed in the absence of a party; it may re-list. But re-listing must
be in the interests of justice, not as a matter of course. A party who deliberately absent themselves to delay
matters cannot expect re-listing as of right.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: Re-listing is at the court's DISCRETION. The absent party does not have the right to
demand re-listing. The court may — and in many cases will — proceed in the party's absence.

1.11 — Totally Without Merit: CPR 23.12

CPR r.23.12 — Totally Without Merit: Mandatory Consequences

RULE TEXT
If the court dismisses an application (including for permission to apply for judicial review) and it considers
that the application is TOTALLY WITHOUT MERIT:
• (a) the order MUST RECORD that fact; AND
• (b) the court MUST AT THE SAME TIME CONSIDER whether to make a CIVIL RESTRAINT
ORDER.

An application is "totally without merit" if it is "bound to fail" — it need not be abusive or vexatious.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

 BOTH consequences in (a) and (b) are MANDATORY ("must"). The court cannot simply dismiss without
considering the civil restraint order.

QUESTION 2 (WORKSHOP): "Which of the following is NOT a power the court has?" CORRECT
ANSWER: [C] — "Dismissing an interim application and, upon concluding it was entirely without merit, the
court REFUSES to consider making a civil restraint order." This is NOT a permitted course — r.23.12
requires the court to consider making a CRO. It is not optional.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: r.23.12 says MUST CONSIDER making a civil restraint order — not must MAKE one.
Considering is mandatory; actually making the CRO is still discretionary.

EXAM TRAP: The "totally without merit" finding must be recorded on the face of the order — this is also
mandatory.

1.12 — PD23A: Complete Reference Table for All Examined Provisions

PD23A Provision Requirement/Effect
Para 2.1 Application notice must: be signed; state claim title, reference number, full
name of applicant; include address for service if not already a party; request
hearing OR paper determination. Draft order must be attached.
Para 2.5 Every application should be made as soon as it appears necessary or
desirable.
Para 2.6 Where possible, applications should be timed to be considered at a hearing
already fixed or about to be fixed (to save costs and court time).
Para 2.7 Parties must anticipate that the court may wish to review the case as a whole at
any hearing where an application is made.
Para 2.8 If a hearing is already fixed and insufficient time to serve the application notice:
inform other party and court in writing as soon as possible; make oral
application at the hearing.
Para 3 Seven circumstances where application may be made without serving an
application notice (or with less than 3 days' notice): (1) exceptional urgency; (2)
overriding objective best served; (3) consent of all parties; (4) permission of
court; (5) address protection; (6) para 2.8 applies; (7) court order/rule/PD
permits.
Para 4 Where notice should be given but insufficient time: give INFORMAL
NOTIFICATION — unless secrecy required. Informal notification ≠ "notice" in
the formal Part 23 sense.
Para 5A.1 CNBC claims: subsequent applications must go to CNBC OR the County Court
hearing centre where the claim is being dealt with.
Para 6.1 Hearings may be in person, remotely, or partially remotely.
Para 6.3 Allocation/listing hearings or hearings with a time estimate not exceeding 2
hours may be conducted by telephone or video.
Para 7.1 Evidence should be served WITH the application notice unless it has already
been served.
Para 7.4 Evidence must be FILED with the court as well as served on other parties.
 EXHIBITS are NOT filed with the court unless the court directs.
Para 7.5 Contents of application notice may be used as evidence (otherwise than at trial)
if verified by a statement of truth. Q5[D] is CORRECT.
Section 2 — Interim Remedies: CPR 25.1, 25.2 and 25.3 (Full Text
and Commentary)
2.1 — The Court's Powers: CPR 25.1

CPR r.25.1 — Interim Remedies: The Full List

RULE TEXT
(1) The court may grant the following interim remedies:
• (a) an interim injunction;
• (b) an interim declaration;
• (c) an order: (i) for the detention, custody, or preservation of relevant property; (ii) for the inspection
of relevant property; (iii) for the taking of a sample of relevant property; (iv) for the carrying out of an
experiment on or with relevant property; (v) authorising a person to enter land or a building in the
possession of a party for the purpose of carrying out an order; (vi) for the sale of relevant property
(where perishable or likely to deteriorate); (vii) for the payment of income from relevant property until
the claim is decided;
• (f) a freezing injunction, restraining a party from removing from the jurisdiction, or otherwise dealing
with any assets whether located within or outside the jurisdiction;
• (g) an order directing a party to provide information about the location of relevant property or assets,
or to provide information about relevant property or assets which are or may be the subject of an
application for a freezing injunction;
• (h) a search order under the Senior Courts Act 1981 s.7 — requiring a party to admit another party
to premises for the purpose of preserving evidence;
• (i) an order under the Senior Courts Act 1981 s.7 — for the imaging of electronic storage devices;
• (j) an order under the Senior Courts Act 1981 s.33 or under the County Courts Act 1984 s.52 for
disclosure of documents or inspection of property before proceedings have started;
• (k) an order under the Senior Courts Act 1981 s.34 or under the County Courts Act 1984 s.53 for
disclosure of documents or inspection of property against a person who is not a party;
• (l) an order for an interim payment under the procedure in rule 25.7;
• (q) an order directing a party to make a payment into court.

(3) The fact that a particular kind of interim remedy is NOT listed in paragraph (1) does NOT affect any
power that the court may have to grant that remedy — the list is NOT EXHAUSTIVE.

(4) The court may grant an interim remedy WHETHER OR NOT there has been a claim for a final remedy
of the same kind.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

r.25.1(1)(a) — INTERIM INJUNCTION: The primary focus of Unit 7 syllabus area 17. The jurisdiction is
derived from SCA 1981 s.37 (High Court) or CCA 1984 s.38 (County Court).

r.25.1(1)(f) — FREEZING INJUNCTION: Previously called a "Mareva injunction." Prevents a party from
removing assets from the jurisdiction or dealing with assets worldwide. Applied for without notice in virtually
all cases — secrecy is essential.

r.25.1(1)(h) — SEARCH ORDER: Previously called an "Anton Piller order." Requires a party to admit
another party to premises for the purpose of preserving evidence. Also applied for without notice in all
cases.
 r.25.1(3): The list is NOT exhaustive. The court's inherent jurisdiction is preserved. A remedy not on the list
may still be granted.

r.25.1(4): The applicant does NOT need to have claimed the final remedy of the same kind. An injunction
may be sought even if no permanent injunction is claimed in the proceedings.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: r.25.1(4) is a frequently tested rule. A party who has not claimed a final injunction in their
Particulars of Claim can still apply for an interim injunction. The court has a wide and flexible power.

"Relevant property" (r.25.1(1)(c)): property which is the subject of a claim OR as to which any question
may arise on a claim, including land.

2.2 — Timing of Application: CPR 25.2 (Full Text)

CPR r.25.2 — Time When an Interim Remedy May Be Applied For

RULE TEXT
(1) An order for an interim remedy may be made at ANY TIME, including: (a) BEFORE PROCEEDINGS
ARE STARTED; or (b) AFTER JUDGMENT HAS BEEN GIVEN — unless a rule or PD provides otherwise.

(2) However, the court may only grant an interim remedy BEFORE proceedings have started if: (a) the
MATTER IS URGENT; OR (b) it is otherwise DESIRABLE IN THE INTERESTS OF JUSTICE to do so.

(3) DEFENDANT'S RESTRICTION: A defendant may not apply for an interim remedy before filing an
ACKNOWLEDGMENT OF SERVICE or a DEFENCE — unless the court gives permission.

(4) WHERE GRANTED BEFORE PROCEEDINGS STARTED: The court must give DIRECTIONS
REQUIRING A CLAIM TO BE COMMENCED — UNLESS: (a) the application is for an order under SCA
1981 s.33 or CCA 1984 s.52 (pre-action disclosure); or (b) the court considers it inappropriate.

r.25.2(5): Where a defendant applies for a freezing injunction or a search order — they may apply without
filing a defence but they must file an acknowledgment of service before applying or at the same time.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

r.25.2(1): Interim remedies can be made BEFORE ISSUE and AFTER JUDGMENT. This is the full
temporal sweep of the court's power.

r.25.2(2): Before proceedings: NOT automatic. Two gateway conditions — urgency OR interests of justice.
A freezing order and a search order are classic pre-commencement interim remedies. They are almost
always urgent.

r.25.2(3) — DEFENDANT'S RESTRICTION: A defendant cannot apply for an interim remedy without first
either filing an AOS or a defence. This is to prevent defendants from using the application process as a
collateral attack on proceedings. Exception: court gives permission.

r.25.2(4) — MANDATORY DIRECTION TO START CLAIM: Once a pre-proceedings interim remedy is

granted, the court MUST direct that a claim be started. If not followed, the injunction is at risk of discharge.
 EXCEPTIONS, LIMITS AND EXAM TRAPS
EXAM TRAP: Before proceedings, an interim remedy is NOT available as of right — it requires URGENCY
or INTERESTS OF JUSTICE. The court does NOT grant pre-proceedings interim remedies simply
because the applicant has not got around to issuing proceedings yet.

2.3 — Evidence and Without-Notice Applications: CPR 25.3 (Full Text with
Commentary 25.3.2–25.3.4)

CPR r.25.3 — Evidence and Without-Notice Applications

RULE TEXT
(1) The court may grant an interim remedy on an application MADE WITHOUT NOTICE if it appears to the
court that there are GOOD REASONS FOR NOT GIVING NOTICE.

(2) An application for an interim remedy MUST be supported by EVIDENCE unless the court orders
otherwise.

(3) If the applicant makes an application without giving notice, the evidence in support MUST STATE THE
REASONS WHY NOTICE WAS NOT GIVEN.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

WHEN IS WITHOUT-NOTICE PERMISSIBLE? (Commentary para 25.3.2–25.3.3):

The court should NOT entertain a without-notice application UNLESS one of two conditions is met:
• (1) Giving notice would enable the defendant to TAKE STEPS TO DEFEAT THE PURPOSE of the
injunction (e.g. freezing orders — defendant would dissipate assets; search orders — defendant
would destroy evidence); OR
• (2) There has been LITERALLY NO TIME to give notice before the injunction is required to prevent
the threatened wrongful act.

Even in situation (2): SHORT NOTICE should normally be given. Except where SECRECY IS ESSENTIAL,
the applicant must take steps to notify the respondent informally of the application: National Commercial
Bank Jamaica v Olint Corp [2009] UKPC.

HEARINGS IN PRIVATE (r.25.3(4)): A hearing may be in private where: (a) publicity would defeat the
object of the hearing; (b) it is a without-notice hearing and it would be unjust for there to be a public
hearing; (c) the hearing involves confidential information and publicity would damage that confidentiality.
Each derogation from open justice and Art.6 ECHR must be justified on the particular facts.

Commentary para 25.3.4 — EVIDENCE: Unless an affidavit is required by the court, a PD, or an
enactment (e.g. freezing and search orders in the Commercial Court where an affidavit is invariably
required), a WITNESS STATEMENT is sufficient. A party may rely on their verified statement of case or
verified application notice.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: r.25.3(3) requires the WITHOUT-NOTICE EVIDENCE to STATE THE REASONS why notice
was not given. This is a MANDATORY requirement of the evidence, not just good practice. An application
notice and witness statement that fail to address this are defective.
MERCER v CARRINGTON LODGE: Para 15 of Mr Mercer's witness statement states: "In view of the
urgency of this matter and the serious threat to my business I make this application without notice." This
satisfies r.25.3(3). (Note: the application was in fact made on SHORT notice — the application notice and
witness statement were served on the respondent's solicitors by email on the same day; the hearing is the
following morning.)
Section 3 — Without-Notice Applications: CPR 25.8 and the Duty
of Full and Frank Disclosure
3.1 — Procedure at Without-Notice Hearings: CPR 25.8 (Full Text)

CPR r.25.8 — Without-Notice Injunction Hearings: Mandatory Procedure

RULE TEXT
(1) WHERE THE APPLICATION IS DEALT WITH AT A COURT HEARING: Where the applicant
reasonably believes there is good reason not to give the required notice and the application is to be dealt
with at a hearing:
• (a) The application notice, supporting evidence, and draft order must be FILED WITH THE COURT
at least 2 HOURS BEFORE the hearing wherever possible;
• (b) If made BEFORE the application notice has been issued: a draft order must be provided at the
hearing; application notice and evidence must be FILED WITH THE COURT on the same day or
next working day (or as ordered);
• (c) EXCEPT WHERE SECRECY IS ESSENTIAL: the applicant must TAKE STEPS TO NOTIFY the
respondent of the application;
• (d) The applicant MUST TAKE OR ARRANGE TO BE TAKEN A NOTE of the hearing and SERVE
THIS NOTE on the respondent as soon as practicable.

(2) WHERE THE APPLICATION IS BEFORE ISSUE OF A CLAIM FORM: In addition to r.25.8(1):
• (a) Either the applicant must UNDERTAKE TO ISSUE A CLAIM FORM IMMEDIATELY, or the court
gives directions for commencement;
• (b) Where possible, the CLAIM FORM must be served WITH THE ORDER for the injunction;
• (c) The order must state in the TITLE: "the Claimant and Defendant in an Intended Action."

(3) WHERE THE APPLICATION IS DEALT WITH REMOTELY:

• (a) The applicant must be prepared to send the judge a draft order in ELECTRONIC FORMAT;
• (b) The application notice and evidence must be filed with the court on the day of hearing or next
working day (or as ordered), together with two copies of the order for sealing.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

r.25.8(1)(a): The 2-HOUR FILING RULE is a MINIMUM. In practice, papers should be filed as early as
possible. "Wherever possible" acknowledges that genuine urgency may prevent the full 2 hours.

r.25.8(1)(c): The obligation to notify the respondent informally (unless secrecy essential) applies even for
without-notice applications. This is confirmed by National Commercial Bank Jamaica v Olint Corp [2009]
UKPC — the applicant must take steps to notify the respondent informally of the application, except where
secrecy is essential. Failure to do this — without adequate justification — can result in the injunction being
discharged.

r.25.8(1)(d): A NOTE OF THE HEARING must be taken and served on the respondent. This ensures the
respondent knows exactly what was said to the court on their behalf. It serves as the basis for any
application by the respondent to vary or discharge the injunction.

r.25.8(2)(a): UNDERTAKING TO ISSUE IMMEDIATELY: Where the application is made before a claim
form is issued, the applicant must either undertake to issue a claim form immediately or obtain court
directions for commencement. This undertaking is part of the order and cannot be ignored.
 r.25.8(2)(c): TITLE: "the Claimant and Defendant in an Intended Action" — this title must appear in the
order where proceedings have not yet been commenced.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: r.25.8(1)(d) — the obligation to TAKE A NOTE of the hearing is on the APPLICANT. The
note must be SERVED ON THE RESPONDENT as soon as practicable. If the applicant fails to take a note
or fails to serve it, this is a breach of the without-notice obligations and can result in discharge.

EXAM TRAP: In Mercer v Carrington Lodge, the application was filed and the hearing is the NEXT
MORNING. The two-hour filing rule (r.25.8(1)(a)) has already been satisfied by the filing of the application
today. The notice to respondent's solicitors by email satisfies r.25.8(1)(c).

3.2 — The Duty of Full and Frank Disclosure: Commentary Para 25.8.1

THE DUTY OF FULL AND FRANK DISCLOSURE — THE FUNDAMENTAL PRINCIPLE (Para
25.8.1)
On ALL applications made without notice, the applicant and their representatives have a duty to make
FULL AND FRANK DISCLOSURE of ALL matters relevant to the application — including all matters of fact
OR LAW which are or may be ADVERSE to the applicant.

The "ultimate touchstone" of the duty is whether the presentation of the application is FAIR IN ALL
MATERIAL RESPECTS.

Sources: Fundo Soberano De Angola v Santos [2018]; Hunt v Ubhi [2023] EWCA Civ 417.

THE SIPOREX FIVE-POINT SUMMARY (Siporex Trade SA v Comdel Commodities [1986];

approved in Marc Rich v Krasner [1999] CA)
Bingham J's five-point description of the duty:

• (1) UTMOST GOOD FAITH: The applicant must show the utmost good faith and disclose their case
FULLY AND FAIRLY.
• (2) SUMMARISE THE CASE: Must summarise their case and the evidence on which it is based —
for the protection and information of the respondent.
• (3) IDENTIFY CRUCIAL POINTS FOR AND AGAINST: Must identify the crucial points FOR AND
AGAINST the application — NOT rely on general statements or merely exhibit numerous
documents without analysis.
• (4) INVESTIGATE AND IDENTIFY DEFENCES: Must investigate the nature of the claim and the
facts relied on BEFORE applying — and must identify any LIKELY DEFENCES.
• (5) DISCLOSE ALL MATERIAL FACTS: Must disclose all facts which reasonably could or would be
taken into account by the judge in deciding whether to grant the application.

THE ADVOCATE'S PERSONAL DUTIES (Memory Corp v Sidhu [2000])

It is the particular duty of the ADVOCATE (not just the instructing solicitor or lay client) to:
• Ensure the correct legal procedures and forms are used.
• Personally PREPARE and LODGE a written skeleton argument AND a properly drafted order with
the court BEFORE the oral hearing.
• At the hearing: draw the court's attention to UNUSUAL FEATURES of the evidence, the
 APPLICABLE LAW, and the FORMALITIES AND PROCEDURES to be observed.

The duty is NOT restricted to facts. It extends to the advocate's duty to present the law accurately. These
duties overlap and cannot be clearly separated from the applicant's own disclosure duty.

THE CONTINUING NATURE OF THE DUTY

The duty does not cease upon the making of the without-notice order. It CONTINUES until:
• (1) The respondent has been SERVED with the injunction; AND
• (2) The respondent is in a position to apply to the court to vary or discharge it.

Significant facts arising AFTER the order is made but BEFORE it is served must be notified to the court
immediately.

SHORT NOTICE APPLICATIONS (Para 25.8.2): Where the respondent is given short notice (less than 3
days), the duty of full and frank disclosure STILL APPLIES. The respondent's appearance and making of
submissions on an urgent application does NOT relieve the applicant of the disclosure duty — unless at
that hearing the respondent deals with all the factual and legal issues in the way the applicant would have
had to, to satisfy their disclosure obligations.

3.3 — Discharge for Material Non-Disclosure: Commentary Para 25.8.3

Discharge for Material Non-Disclosure: The Legal Framework

RULE TEXT
The consequences of breaching the duty of full and frank disclosure are governed by a body of case law
beginning with R v Kensington Income Tax Commissioners [1917] and refined in Brink's-MAT v Elcombe
[1988] and subsequent authorities.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

PRINCIPLES on discharge:
• (1) If the duty of full and frank disclosure is not observed, the court MAY discharge the injunction.
• (2) No excuse for IGNORANCE — it is no excuse that the applicant was unaware of the importance
of the matters omitted.
• (3) COURT MAY DISCHARGE EVEN IF ORDER WAS CORRECT — the court may discharge even
if, after full inquiry, the order would probably have been made even with full disclosure: R v
Kensington Income Tax Commissioners [1917].
• (4) TWO-FOLD PURPOSE of discharge: (a) deprives the wrongdoer of any advantage improperly
obtained; (b) deters others from breaching the duty.
• (5) STRONG INCLINATION TO SET ASIDE on substantial breach — especially for freezing and
search orders.
• (6) DISCHARGE NOT AUTOMATIC — the court considers: gravity of the breach;
excuse/explanation; severity and duration of prejudice to defendant; whether the breach is
remediable and has been remedied.
• (7) DELIBERATE NON-DISCLOSURE — only in exceptional circumstances would the court NOT
discharge.

KEY CASE: Tugushev v Orlov [2019] EWHC 2031 (Comm) — Carr J distilled 13 principles from the
authorities on full and frank disclosure. Approved by the Court of Appeal in Derma Med v Ally [2024]. This
is now the first port of call for practitioners on the duty.

EXCEPTIONS, LIMITS AND EXAM TRAPS

KEY CASE: Brink's-MAT Ltd v Elcombe [1988] 1 WLR 1350 CA: Applications to set aside for material non-
disclosure must not be made without proper reason. Courts have deprecated the growing tendency to
allege non-disclosure on "rather slender grounds." Issues of non-disclosure should be capable of being
dealt with concisely.

DISCHARGE AND RE-GRANT (Para 25.8.5): Where serious non-disclosure results in discharge, the court
has a balancing task. On one hand: justice may require a fresh injunction. On the other hand: the deterrent
effect must be maintained — "this judge-made rule cannot be allowed itself to become an instrument of
injustice" (Balcombe LJ in Brink's-MAT). The court strongly inclines towards not renewing to maintain
deterrent effect.
Section 4 — Form of the Interim Injunction Order: CPR 25.9 (Full
Text and Annotation)
CPR r.25.9 — Mandatory Contents of an Interim Injunction Order

RULE TEXT
(1) Unless the court orders otherwise, any order for an injunction MUST set out clearly what the
respondent must do or not do.

(2) If the order is made in the presence of all parties or at a hearing of which all parties had due notice, the
order MAY state that it is effective UNTIL TRIAL OR FURTHER ORDER.

(3) Unless the court otherwise orders, the following must be included in an order for an injunction made
without notice or in the respondent's absence at a hearing of which they had notice:
• (a) An UNDERTAKING BY THE APPLICANT to pay any damages sustained by the respondent (and
agreed by the applicant to be paid) if the court later decides the injunction was wrongly granted —
the CROSS-UNDERTAKING IN DAMAGES. (Exception: r.25.9(6) disapplies this in Aarhus
Convention cases.)
• (b) If made without notice: undertaking by the applicant to serve on the respondent, as soon as
practicable: (i) the application notice; (ii) the evidence in support; (iii) a note of the hearing; and (iv)
any order made.
• (c) If made without notice: a RETURN DATE for a further hearing at which the respondent may be
present.
• (d) If made before filing the application notice: undertaking to file the application notice and pay the
relevant fee on the SAME OR NEXT WORKING DAY.
• (e) If made before a claim form has been issued: undertaking to issue the claim form and pay the
relevant fee on the SAME OR NEXT WORKING DAY — or the court gives directions as to
commencement.

(4) Where making an order for delivery up or preservation of evidence or property likely to be executed at
the respondent's or a third party's premises: the court MUST CONSIDER whether to include provisions for
their benefit or protection (e.g. limiting attendance to specific named persons; requiring supervision by a
responsible person; limiting the time of execution).

(5) The court MUST CONSIDER whether to require an undertaking to pay damages to any person OTHER
THAN the respondent (including other parties or anyone who may suffer loss as a result of the order).

(6) AARHUS CONVENTION EXCEPTION: Where the injunction relates to conduct of a business and the
grant would impede that business, the applicant need not give a cross-undertaking in damages if it would
be financially unviable — but see r.25.9(7) (court may still require security or a lesser undertaking).

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

r.25.9(1) — CLARITY REQUIREMENT: The order must be clear. An injunction that is vague or ambiguous
cannot be enforced. The respondent must be able to tell, without legal advice, what they are required to do
or not do.

r.25.9(2) — "UNTIL TRIAL OR FURTHER ORDER": This form of order is standard in contested interim
injunctions where both parties appeared. It preserves the injunction until the final hearing unless either side
applies to vary or discharge it.
r.25.9(3)(a) — CROSS-UNDERTAKING: The RETURN DATE (r.25.9(3)(c)) is mandatory for every without-
notice order. It provides the respondent with their first opportunity to be heard and to apply to vary or
discharge the injunction.

r.25.9(3)(b) — SERVE DOCUMENTS: The applicant's undertaking to serve ALL materials on the
respondent is mandatory. This is the mechanism that gives the respondent the information they need to
decide whether to apply to vary or discharge.

r.25.9(5) — CONSIDER THIRD PARTIES: The court must actively consider whether the cross-undertaking
should cover third parties who might suffer loss — e.g. employees of the respondent, or customers who
would be affected by the injunction.

EXCEPTIONS, LIMITS AND EXAM TRAPS

WARNING — r.25.9(3)(a): The cross-undertaking in damages is MANDATORY in without-notice orders
unless the court orders otherwise. Without it, the order should not be made. But — crucially — the court
CANNOT COMPEL the applicant to give it. If the applicant refuses, the injunction is refused. The
undertaking is the "PRICE" of the injunction.

WARNING — r.25.9(3)(c): The RETURN DATE is mandatory in every without-notice order. It is the
respondent's opportunity to be heard on the full merits. If the applicant does not include a return date in the
draft order, the court should require one. The date should be as soon as is practical — usually within 7–14
days.

EXAM TRAP: For a BEFORE-ISSUE without-notice injunction order, the title must read "the Claimant and
Defendant in AN INTENDED ACTION" — not "Claimant" and "Defendant" simpliciter.
Section 5 — Jurisdiction to Grant Injunctions: SCA 1981 s.37 and
WB Para 15-4
Senior Courts Act 1981, s.37 — The Statutory Foundation (WB Para 15-4)

RULE TEXT
s.37(1): The High Court may by order (whether interlocutory or final) grant an injunction OR APPOINT A
RECEIVER in ALL CASES in which it appears to the court to be just and convenient to do so.

s.37(2): Any such order may be made either unconditionally or on such terms and conditions as the court
thinks just.

(Equivalent power: County Courts Act 1984 s.38 — County Court.)

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

WB PARA 15-4 — FIRST SUB-PARAGRAPH TO "...EITHER UNCONDITIONALLY OR ON SUCH TERMS
AS THE COURT THINKS JUST":

The court's powers under SCA 1981 s.37 are CONFIRMED, not conferred, by the section (Fourie v Le
Roux [2007] UKHL 1, per Lord Scott). The power originates in the Supreme Court of Judicature Act 1873
s.25(8) which was intended to ensure the new courts could exercise the full range of jurisdiction —
including that of the Court of Chancery.

The section is stated widely and in general terms: "just and convenient" — conferring a broad discretion.
But the court will normally exercise the power IN ACCORDANCE WITH EXISTING PRACTICE. This
ensures principled and predictable exercise of the jurisdiction.

Broad Idea International v Convoy Collateral [2021] UKPC 24: Many cases where the court was said to
"lack jurisdiction" to grant an injunction are better explained by recognising that the court had the power but
declined to exercise it in accordance with settled practice.

Wolverhampton CC v London Gypsies and Travellers [2023] UKSC 47: It is now settled that injunctive
relief may be granted even where there is no claim for substantive relief — including freezing orders in
support of a foreign judgment. The traditional requirement of "a cause of action" giving rise to a right to an
injunction is qualified.

The court will usually only exercise its power in accordance with existing practice. But existing practice is
NOT IMMUTABLE — it develops (Fourie v Le Roux). New forms of injunction (such as super-injunctions,
or contra mundum injunctions) can be developed within the s.37 framework where justice requires.

EXCEPTIONS, LIMITS AND EXAM TRAPS

KEY CASE: Fourie v Le Roux [2007] UKHL 1: the SCA s.37 CONFIRMS the court's power — it does not
confer it. The power derives from the equitable jurisdiction of the court. The statutory language ("just and
convenient") is a broad discretion. The court will normally exercise it within existing practice, but that
practice is not immutable.

EXAM TRAP: s.37 CONFIRMS the power — it does NOT confer a new power that did not previously exist.
The power originates in equity and the fusion of legal and equitable jurisdictions by the Judicature Acts
1873–1875.
Section 6 — American Cyanamid: The Three-Stage Structure (WB
Paras 15-7 to 15-15)
AMERICAN CYANAMID Co v ETHICON Ltd [1975] AC 396 (House of Lords) — THE
FOUNDATION
American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 is the single most important case in
interim injunction law. You MUST know it by name and be able to apply its three-stage structure fluently.
Lord Diplock delivered the principal speech.

PURPOSE of the guidelines (WB para 15-7): How best to decide upon (a) the fairest temporary order
without seeing or testing the evidence at a trial; and (b) whether a full trial is necessary.

American Cyanamid REPLACED the old "prima facie case" test (which had effectively required a "trial in
miniature") with the lower threshold of "a serious question to be tried."

6.1 — Stage 1: Serious Question to Be Tried (WB Para 15-8 — All 12 Principles
from Lord Diplock)

THE 12 PRINCIPLES FROM LORD DIPLOCK'S SPEECH IN AMERICAN CYANAMID (WB Para
15-8)
• (1) The grant of an interlocutory injunction is BOTH TEMPORARY AND DISCRETIONARY.
• (2) The evidence is INCOMPLETE — given in writing and not tested by oral cross-examination.
• (3) It is NOT the court's function to try to RESOLVE CONFLICTS OF EVIDENCE or DECIDE
DIFFICULT QUESTIONS OF LAW — these are matters for trial.
• (4) The decision is taken when the existence of the right and its violation are UNCERTAIN.
• (5) The practice arose to MITIGATE THE RISK OF INJUSTICE to the claimant during this uncertain
period.
• (6) SUBJECT TO the claimant's UNDERTAKING TO PAY DAMAGES to the defendant if the
injunction should not have been granted.
• (7) Object: PROTECT the claimant against injury for which damages would not compensate IF the
case succeeds at trial — but weighed against the defendant's CORRESPONDING NEED FOR
PROTECTION.
• (8) The court must WEIGH ONE NEED AGAINST ANOTHER and determine where the BALANCE
OF CONVENIENCE lies.
• (9) There is NO RULE that the court must first be satisfied on the balance of probabilities that the
acts complained of would violate the applicant's rights.
• (10) The court must be satisfied the claim is NOT FRIVOLOUS OR VEXATIOUS — there must be a
SERIOUS QUESTION TO BE TRIED.
• (11) Unless the material fails to disclose ANY REAL PROSPECT of succeeding at trial, the court
should go on to consider the BALANCE OF CONVENIENCE.
• (12) Very exceptional for the House of Lords to give leave to appeal on where the balance of
convenience lay.

APPLYING THE STAGE 1 THRESHOLD (WB Para 15-8 Commentary)

The threshold test is LOW. The applicant needs to show only a REAL PROSPECT of succeeding — NOT
that they are likely to succeed on the balance of probabilities at trial.
 The court should take the applicant's pleaded and evidenced case AT FACE VALUE unless it is plainly
false or fanciful: [Link] v Newcastle United [2024] EWCA Civ 532. It cannot conduct a mini-trial,
but it is wrong to disregard all contentious evidence.

NO POSSIBLE DEFENCE = NO SERIOUS QUESTION = GRANT THE FINAL INJUNCTION NOW.

Where there is no possible defence to the claim, it is a misuse of the court's process to withhold interim
relief: Manchester Corp v Connolly [1970].

IF CLAIM IS HOPELESS = NO SERIOUS QUESTION = REFUSE INJUNCTION AND NO NEED TO

PROCEED TO TRIAL. A frivolous or vexatious claim cannot cross the Stage 1 threshold.

WB PARA 15-9.1 — INTERIM RELIEF PENDING APPEAL: The court has jurisdiction to grant interim
protection by injunction to a party who has been UNSUCCESSFUL at trial, pending an appeal. An
unsuccessful claimant may be granted interim protection if seeking to restrain irreparable harm pending
appeal, notwithstanding having been unsuccessful in asserting their right at trial: Novartis AG v Hospira
UK Ltd [2013] EWCA Civ 583.

6.2 — Stage 2: Adequacy of Damages (Guidelines 1 and 2, WB Paras 15-10 to 15-

12)

WB Para 15-10 — GUIDELINE 1: Adequacy of Damages for the CLAIMANT

RULE TEXT
First question: If the claimant succeeds at trial, would damages ADEQUATELY COMPENSATE them for
loss caused by REFUSAL of the interim injunction?

AND: Can the DEFENDANT PAY such damages if awarded?

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

IF YES (damages adequate AND defendant can pay): normally NO interim injunction should be granted —
HOWEVER STRONG the claimant's case appears at this stage.

The word "normally" is important — there may be exceptional circumstances where damages are
technically calculable but inadequate in practice.

EXAMPLES OF WHEN DAMAGES ARE NOT ADEQUATE:

• LOSS OF GOODWILL — damage to a party's reputation or business relationships that cannot be
precisely quantified.
• DAMAGE TO REPUTATION — defamation or privacy cases where the harm to reputation is
immediate and irreversible.
• THREAT TO BUSINESS EXISTENCE — where refusal would cause the business to collapse before
trial.
• IRREVERSIBLE INTERFERENCE WITH PROPERTY — including land, unique chattels, or
intellectual property.
• PERSONAL OR CONFIDENTIAL INFORMATION DISCLOSURE — once confidential information is
disclosed, it cannot be "undisclosed."
• INABILITY TO QUANTIFY — where the harm is real but assessment of quantum would be
speculative and unreliable.
Also: can the DEFENDANT PAY? Even where damages are theoretically adequate, if the defendant is
insolvent or of doubtful means, the ability to obtain and enforce a money judgment is in doubt — so
damages are not an adequate remedy in practice.

WB PARA 15-11 — From Fellowes & Son v Fisher [1976] (Browne LJ):
The court should first consider whether the applicant would be adequately compensated in damages AND
whether the respondent is in a financial position to pay the damages.

EXCEPTIONS, LIMITS AND EXAM TRAPS

MERCER v CARRINGTON LODGE — APPLYING GUIDELINE 1:
• Would damages adequately compensate Mercer? Arguably NOT — the loss of goodwill, business
reputation, and regular custom that would result from the boot sale not proceeding cannot be
precisely quantified. Mercer's witness statement (para 12) explains that business depends on
regularity and word of mouth — this is classic "unquantifiable goodwill" that defeats the adequacy of
damages.
• Could Carrington Lodge pay damages? Appears to be a functioning hotel business — probably yes.
But the risk is that by the time damages are assessed (years later), the business has collapsed.
• The stronger argument for Mercer: damages are NOT adequate because the harm to his reputation
and business from a failed boot sale is immediate and largely irreversible.

WB Para 15-12 — GUIDELINE 2: Adequacy of Damages for the DEFENDANT (Under

the Cross-Undertaking)

RULE TEXT
Second question: If the injunction IS granted but should NOT have been, would damages under the
claimant's CROSS-UNDERTAKING ADEQUATELY COMPENSATE the defendant?

AND: Can the CLAIMANT PAY such damages if ordered?

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

IF YES (damages adequate under the undertaking AND claimant can pay): there is no reason on this
ground to refuse the interim injunction.

IF NO (damages would not adequately compensate the defendant, or the claimant cannot pay): this is a
factor weighing AGAINST granting the injunction.

WB PARA 15-12 — NOTE: A literal application of guideline (2) — that whenever the defendant can be
compensated, an injunction must be granted — CANNOT have been Lord Diplock's intention: Cayne v
Global Natural Resources [1984]. The guideline is not mechanical.

QUESTION 5 ORDER (ASSESSMENT): The correct order of the American Cyanamid inquiry:
• (ii) Serious question to be tried.
• (v) Damages adequate for APPLICANT?
• (vi) Can RESPONDENT pay such damages?
• (i) Damages adequate for RESPONDENT (under cross-undertaking)?
• (iii) Can APPLICANT pay damages if required?
• (iv) Narrow balance of convenience.
• (vii) Status quo.
CORRECT ANSWER: [B] — (ii), (v), (vi), (i), (iii), (iv), then (vii).
 EXCEPTIONS, LIMITS AND EXAM TRAPS
MERCER v CARRINGTON LODGE — APPLYING GUIDELINE 2:
• If the injunction is granted but should not have been: would the cross-undertaking adequately
compensate Carrington Lodge? The hotel's losses from being required to allow the boot sale (loss of
use, any disruption) are quantifiable — probably yes.
• Can Mercer pay? Para 14 of his witness statement confirms: "I understand what an undertaking in
damages is and am willing and able to give such an undertaking if so required." He has confirmed
ability to pay — this weighs in favour of granting.

6.3 — Stage 3: Balance of Convenience (Guidelines 3–7, WB Paras 15-12, 15-14

and 15-15)

THE TRUE TEST AT STAGE 3 (WB Para 15-12)

If there is DOUBT as to the adequacy of either or both respective remedies in damages, the court
proceeds to Stage 3 — the BALANCE OF CONVENIENCE.

The true balance to be struck is the BALANCE OF THE RISK OF DOING AN INJUSTICE — "which
course carries the lower risk of injustice?": NWL Ltd v Woods [1979] HL.

Olint [2009] UKPC: The court "should take whatever course seems likely to cause the least irremediable
prejudice to one party or the other."

GUIDELINES 3–7: THE BALANCE OF CONVENIENCE (WB Para 15-14 and 15-15)
GUIDELINE (3) (WB Para 15-12): Where there is doubt as to adequacy of damages, the balance of
convenience question arises. No exhaustive list of factors — they vary from case to case.

GUIDELINE (4) (WB Para 15-14 — STATUS QUO): Where other factors appear EVENLY BALANCED: a
"COUNSEL OF PRUDENCE" to PRESERVE THE STATUS QUO which existed immediately before the
application was made. But parties should not be encouraged to think the court will be unwilling to undo a
fait accompli, especially if one party "stole a march" on the other.

"Status quo" means the state of affairs IMMEDIATELY before the application — not the state of affairs
before the defendant began the activity complained of. The court is preserving the position as it actually
stands, not reverting to a hypothetical previous state.

GUIDELINE (5) (WB Para 15-14): The extent to which DISADVANTAGES TO EACH PARTY would be
INCAPABLE OF BEING COMPENSATED IN DAMAGES is always a significant factor. The greater the
uncompensatable harm on one side, the more the balance tips in their favour.

GUIDELINE (6) (WB Para 15-15 — RELATIVE STRENGTH OF CASES — LAST RESORT): May be
taken into account ONLY AS A LAST RESORT when: (a) the uncompensatable disadvantage does NOT
differ widely between the parties; AND (b) it is APPARENT FROM UNDISPUTED FACTS that one party's
case is DISPROPORTIONATELY STRONGER. CANNOT be used to conduct a mini-trial or resolve
disputed evidence.

GUIDELINE (7): There may be many other SPECIAL FACTORS in the particular circumstances of
individual cases.
GUIDELINE (6) — "LAST RESORT": THE KEY LIMITATION
Guideline (6) is the MOST MISUSED element of American Cyanamid. Its correct application:
• It is a LAST RESORT — only reached if all previous guidelines leave the balance evenly poised.
• It can only be used where the relevant facts are UNDISPUTED — not to resolve factual
controversies.
• It requires a DISPROPORTIONATE difference in strength — not a marginal advantage.
• It is designed to avoid "trying to resolve conflicts on affidavit" and deciding issues for mature
consideration at trial.

[Link] v Newcastle United [2024] EWCA Civ 532: The court should take the applicant's case at
face value unless plainly false or fanciful. Even at guideline (6) stage: the court does not try the case.

CROSS-UNDERTAKING IN DAMAGES IN THE BALANCE OF CONVENIENCE (WB Para 15-15)

The WILLINGNESS of the applicant to give the cross-undertaking in damages is a VERY MATERIAL
CONSIDERATION in determining whether or not the interim injunction should be ordered.

SmithKline Beecham v Apotex Europe [2006] EWCA Civ 658: The fact that an ultimately unsuccessful
claimant will have to compensate the defendant for losses suffered through complying with the interim
remedy is a MAJOR FACTOR in the balance of convenience. A meaningful cross-undertaking shifts the
balance significantly in the applicant's favour.

MERCER v CARRINGTON LODGE: Mercer has confirmed his willingness and ability to give a cross-
undertaking in damages (para 14 of his witness statement). This is a significant factor in his favour at
Stage 3.
Section 7 — Exceptions to American Cyanamid (WB Paras 15-17,
15-18, 15-20, 15-24)
The American Cyanamid guidelines are not a statutory code. They are guidelines, not rules, and they may be modified
or displaced in at least three key categories of case. The starting point in all three exceptions is that the guidelines are
applied but with modifications to take account of the particular circumstances.

Exception 1 — Where Granting or Refusing the Injunction Will Effectively

Dispose of the Action Finally (WB Paras 15-17 and 15-18)

NWL Ltd v Woods [1979] 1 WLR 1294 HL — THE LEADING AUTHORITY

WHERE THE GRANT OR REFUSAL OF THE INTERIM INJUNCTION WILL IN EFFECT DISPOSE OF
THE ACTION FINALLY — because there would be nothing left on which it is in the unsuccessful party's
interest to proceed to trial.

Lord Diplock in NWL v Woods: In such cases, "the degree of likelihood that the plaintiff would have
succeeded in establishing their right to an injunction if the action had gone to trial" is a FACTOR TO BE
BROUGHT INTO THE BALANCE when weighing the risks of injustice.

This is NOT inconsistent with American Cyanamid — nothing in that case prevents the judge giving "full
weight to all the practical realities."

The INVESTIGATION of "degree of likelihood" need not, and perhaps should not, amount to a full trial. It is
for the JUDGE TO CONTROL THE EXTENT OF THE INQUIRY undertaken: Lansing Linde v Kerr [1991].

Approach Cases

Within the guidelines Cambridge Nutrition v BBC [1990]; Lawrence David v Ashton [1989]

"Broad brush" Cayne v Global Natural Resources [1984]; where trial clearly will not occur
approach

THE PRACTICAL EFFECT — EXCEPTION 1

Where this exception applies, the court is permitted to give GREATER WEIGHT to the relative strength of
the parties' cases than it would normally be allowed to do under Guideline (6). In effect, a more intensive
inquiry into the merits is conducted — though still not a full trial.

NWL v Woods is commonly regarded as creating an "EXCEPTION" to American Cyanamid in the sense
that it creates an exception to the rule that the relative strength of each party's case generally should NOT
be taken into account.

In practice: courts often take an ADMIXTURE of both approaches and find it unnecessary to decide
whether the solution is "within" or "without" the guidelines.

Exception 2 — Effect of Delay to Trial in Restraint of Trade Cases (WB Para 15-
20)
 Forse v Secarma Ltd [2019] EWCA Civ 215 — THE MODERN APPROACH
WHERE ANTICIPATED DELAY TO TRIAL MEANS THE GRANT OR REFUSAL OF THE INJUNCTION
WILL IN EFFECT DISPOSE OF THE ACTION FINALLY — because the relevant period of restraint or
protection will have expired before trial.

CLASSIC EXAMPLE: A former employer seeks to enforce a POST-TERMINATION RESTRICTIVE

COVENANT of (say) 12 months. If trial cannot take place within that period, the grant or refusal of the
interim injunction is EFFECTIVELY FINAL — there will be nothing to argue about at trial.

MODERN APPROACH (Forse v Secarma Ltd [2019] EWCA Civ 215): Apply the AMERICAN CYANAMID
TEST but when considering the BALANCE OF CONVENIENCE, the court should take account AS BEST
IT CAN of the LIKELIHOOD THAT THE CLAIMANT WOULD SUCCEED OR FAIL IF THERE WERE A
TRIAL.

PRACTICAL GUIDANCE (Lawrence David v Ashton [1989]):

• (1) The grant or refusal is only "effectively disposing of the action finally" if the action CANNOT be
tried before the period of restraint has expired, or has run a large part of its course.
• (2) Parties should COOPERATE to get the case ready for trial quickly and apply for a SPEEDY
TRIAL.
• (3) The defendant should consider offering an appropriate UNDERTAKING until the hearing of the
action, provided a speedy hearing can be fixed and the claimant can pay damages on the cross-
undertaking.
• (4) The claimant should keep the period of restraint running, having regard to the mitigation principle
— i.e. not seek to extend the restriction by the length of the delay.

WB PARA 15-20 — first sub-paragraph to "...until the very end of the period of the contractual restriction.":
The modern position does NOT require the court to abandon American Cyanamid entirely in restraint of
trade cases. The test is modified — the merits of the claim become a relevant factor in the balance of
convenience — but the three-stage structure remains.

Exception 3 — Mandatory Injunctions (WB Para 15-24)

Nottingham Building Society v Eurodynamics [1993] FSR 468 — THE FOUR-STAGE TEST
A MANDATORY INJUNCTION directs a POSITIVE ACT — to repair an omission or restore the prior
position by undoing a wrongful act. It is a more intrusive remedy than a PROHIBITORY injunction (which
merely prevents an act).

The fundamental question is NOT semantic (mandatory vs prohibitory) but which course is more or less
likely to cause irremediable prejudice if the injunction turns out to have been wrongly granted or wrongly
refused: Olint [2009] UKPC.

The FOUR-STAGE TEST from Nottingham Building Society v Eurodynamics [1993] (endorsed by Court of
Appeal in Zockoll v Mercury Communications [1998] as "ALL THE CITATION THAT SHOULD IN FUTURE
BE NECESSARY"):

• (1) OVERRIDING CONSIDERATION: which course involves the LEAST RISK OF INJUSTICE if it
turns out to be wrong — either by granting to a party who fails at trial OR by failing to grant to a
party who succeeds at trial.
• (2) An order requiring a POSITIVE STEP at an interlocutory stage MAY WELL CARRY A
GREATER RISK OF INJUSTICE if wrongly made than a merely prohibitory order (which preserves
 the status quo). Mandatory injunctions are therefore scrutinised more closely.
• (3) It is LEGITIMATE TO CONSIDER whether the court has a HIGH DEGREE OF ASSURANCE
that the claimant will establish their right at trial — the greater the assurance, the less the risk of
injustice in granting. Note: a "high degree of assurance" is RELEVANT — not an absolute
precondition.
• (4) BUT even without a high degree of assurance, a mandatory injunction MAY still be appropriate
where the RISK OF INJUSTICE IF REFUSED SUFFICIENTLY OUTWEIGHS the risk of injustice if
granted.

MANDATORY INJUNCTIONS — KEY DISTINCTIONS FROM PROHIBITORY INJUNCTIONS

(1) STANDARD at Stage 1: For a prohibitory injunction — "serious question to be tried" (low threshold).
For a mandatory injunction — a "HIGH DEGREE OF ASSURANCE" is a relevant factor, even though not
an absolute precondition.

(2) STAGE 3: For a prohibitory injunction — the balance of convenience is weighed applying Guidelines
(3)–(7). For a mandatory injunction — the greater risk of injustice from a wrongly-made positive order is
expressly built into the test (Nottingham stage (2)).

(3) CITE: Always cite Nottingham Building Society v Eurodynamics [1993] for mandatory injunctions —
and cite Zockoll v Mercury [1998] as confirming it is the right authority. Do NOT use the American
Cyanamid test alone for mandatory injunctions.

MERCER v CARRINGTON LODGE: This application is for a MANDATORY injunction — requiring the
hotel to GRANT ACCESS to the field (a positive act). It is NOT merely prohibitory. The Nottingham
Building Society four-stage test should be applied alongside (or in preference to) the standard American
Cyanamid guidelines.
Section 8 — The Cross-Undertaking in Damages (WB Paras 15-25
to 15-27 and 15-30)
8.1 — The Nature and Requirement of the Cross-Undertaking (WB Para 15-25 and
15-26)

WB Paras 15-25 and 15-26 — The Cross-Undertaking: Nature and Practice

RULE TEXT
WB PARA 15-25: The court is normally only prepared to grant an interim injunction if the applicant is
prepared to OFFER A CROSS-UNDERTAKING IN DAMAGES. The court has NO POWER TO ORDER a
party to give a cross-undertaking — it is something the applicant must VOLUNTEER.

WB PARA 15-26: The practice (since at least the mid-19th century) is to make the grant of an interlocutory
injunction subject to a condition in the form of the claimant's undertaking to pay damages to the defendant
for any loss sustained by reason of the injunction if it subsequently transpires it OUGHT NOT TO HAVE
BEEN GRANTED — e.g. if proceedings are discontinued, the injunction is discharged before trial, or the
claimant is held not to have been entitled to restrain the defendant at trial.

Statutory basis: SCA 1981 s.37(2) — the order may be made "on such terms and conditions as the court
thinks just."

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

The cross-undertaking is the "PRICE" of an injunction — the QUID PRO QUO for the court making an
interim order without having determined the facts or the claimant's entitlement at trial: Tucker v New
Brunswick Trading Co [1890].

If the applicant is UNWILLING to pay the price, they do NOT get the injunction: Hoffmann-La Roche v
Secretary of State [1975] AC 295 HL.

The court CANNOT COMPEL the applicant to give a cross-undertaking. But it CAN refuse to grant the
injunction if one is not offered. The practical effect is the same — the applicant gives the undertaking or
gets no injunction.

In practice, required to protect not only the RESPONDENT but ANY other person who may suffer loss in
consequence of the order (r.25.9(5) — the court must consider whether to require an undertaking to cover
third parties).

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: The cross-undertaking is given to the COURT — not to the respondent (Hoffmann-La
Roche). Three critical consequences (WB Para 15-27):
• (1) INTERPRETATION is for the court — not a matter of divining the mutual understanding of the
parties.
• (2) It may be ENFORCED BY A NON-PARTY where it is given for their benefit as well (SmithKline
Beecham v Apotex [2005]).
• (3) When an undertaking given to the court is NOT COMPLIED WITH, the court must inquire as to
why and determine what sanction or consequential order to impose.
8.2 — Undertakings in Lieu of Injunction (WB Para 25.1.31)

UNDERTAKINGS IN LIEU OF INJUNCTION — KEY PRINCIPLES

When an interim injunction is granted without notice, the defendant may on the RETURN DATE offer
undertakings to the court IN LIEU of the injunction being continued. This avoids the injunction being
formally extended.

KEY PRINCIPLE 1: If the defendant offers undertakings but wishes to preserve their right to apply for
RELEASE from them, this reservation must be EXPRESSLY STATED in the undertaking itself.

Without such reservation: the defendant is precluded from seeking to set aside the original order or be
released from the undertakings UNLESS they can show "good cause" — normally changed circumstances
making continuation unnecessary, oppressive, or unjust: Emailgen Systems Corp v Exclaimer [2013].

KEY PRINCIPLE 2: Once a defendant CONSENTS TO CONTINUATION of an order, they can only
succeed in discharging it if there has been a MATERIAL CHANGE OF RELEVANT CIRCUMSTANCES:
Stephens McBride Piercy Taylor v McBride [2014].

8.3 — Variation and Discharge of Undertakings (WB Para 25.1.32)

Birch v Birch [2017] UKSC 53 — The ONLY Correct Route to Vary an Undertaking

RULE TEXT
Birch v Birch [2017] UKSC 53 (Supreme Court): A court has NO POWER TO IMPOSE any variation of the
terms of a voluntary promise — even where circumstances have materially changed.

COMMENTARY — WHAT IT MEANS AND HOW IT APPLIES

CORRECT ROUTE: A litigant who wishes to cease to be bound by an undertaking must:
• Apply for RELEASE FROM or DISCHARGE OF the undertaking — NOT a variation;
• May accompany the application with an offer of a FURTHER UNDERTAKING IN DIFFERENT
TERMS;
• The court may accept the further undertaking and grant the application for release — or indicate it
will only do so conditionally.

Application to "VARY" an undertaking is WHOLLY WRONG IN FORM — this is a Birch v Birch [2017]
UKSC 53 point and is now settled.

APPEALS AGAINST UNDERTAKINGS: In the absence of extraordinary circumstances, a claimant who

has given an undertaking to obtain an injunction is NOT normally entitled to APPEAL against that
undertaking. Two routes if wishing to challenge:
• (1) DECLINE TO GIVE the undertaking (accepting the injunction will be refused or given only
pending appeal); OR
• (2) REFUSE TO GIVE IT but invite the judge to make an equivalent ORDER or make the injunction
conditional on fortification.

EXCEPTIONS, LIMITS AND EXAM TRAPS

EXAM TRAP: There is NO application to "vary" a voluntary undertaking. The word "variation" is
fundamentally wrong in form. The applicant must apply for RELEASE from the existing undertaking — and
may offer a new undertaking in different terms alongside that application.
8.4 — Impecunious Applicants: WB Para 15-30
Principle Authority
The court will NOT deny a Allen v Jambo Holdings [1980] 1 WLR 1252 CA
legally aided claimant an
injunction simply because their
undertaking in damages would
be of limited value — questions
of financial stability ought not to
affect the essential justice of
the case.

An impecunious applicant's R (Ellson) v Greenwich LBC [2006]

inability to meet damages IS a
factor to be taken into account
— they show how strongly they
feel about the claim, but the
court knows they cannot meet
damages in practice.

If applicant says they cannot JSC Mezhdunarodniy Bank v Pugachev [2015] EWCA Civ 139
give unlimited undertaking:
burden is on them to show that
external funds are not available
and why a lesser undertaking
should be accepted.

TEST (derived from Goldtrail): Goldtrail Travel Ltd v Onur Air [2017] UKSC 57 (analogised)
Has the applicant established
on the balance of probabilities
that NO FUNDS WOULD BE
MADE AVAILABLE to it
(whether by its owner if a
company, or by some closely
associated person) as would
enable it to satisfy the
requirement of providing a
meaningful cross-undertaking?
Section 9 — American Cyanamid Flowchart
This flowchart from the ULAW Unit 7 materials structures the American Cyanamid inquiry visually. It is reproduced here
in full as an examinable reference. PURPOSES: (a) how best to decide upon the fairest temporary order without seeing
or testing evidence at a trial; and (b) whether a trial is necessary.

STAGE 1 — IS THERE A SERIOUS QUESTION TO BE TRIED?

(1) The claim must have a recognised cause of action.
(2) The claim must not be "frivolous or vexatious".
→ If NO POSSIBLE DEFENCE: no serious question → Grant "final" injunction now.
→ If CLAIM IS HOPELESS: refuse injunction, no need to proceed to trial.
→ If there IS a serious question: proceed to Stage 2.

STAGE 2 — WOULD DAMAGES BE AN ADEQUATE REMEDY?

GUIDELINE (1): Would damages adequately compensate the APPLICANT if the injunction is refused AND can
the respondent pay?
→ IF YES: normally no injunction (however strong the applicant's case).
→ IF NO: proceed to Guideline (2).

GUIDELINE (2): Would damages under the cross-undertaking adequately compensate the RESPONDENT if the
injunction is wrongly granted AND can the applicant pay?
→ IF YES: no reason on this ground to refuse the injunction.
→ IF NO (or doubt): proceed to Stage 3.

STAGE 3 — BALANCE OF CONVENIENCE (GUIDELINES 3–7)

True test: which course causes the LEAST IRREMEDIABLE PREJUDICE / lower risk of injustice?

GUIDELINE (3): Doubt as to adequacy of damages → consider all relevant factors (not exhaustive).

GUIDELINE (4) [STATUS QUO]: If factors EVENLY BALANCED → counsel of prudence to preserve status quo
immediately before the application.

GUIDELINE (5): Extent to which disadvantages are INCAPABLE OF COMPENSATION IN DAMAGES → always
significant.

GUIDELINE (6) [LAST RESORT]: Relative strength of cases — ONLY if (a) uncompensatable disadvantage
does not differ widely AND (b) one party's case is disproportionately stronger on UNDISPUTED facts. NOT a
mini-trial.

GUIDELINE (7): Any other SPECIAL FACTORS in the particular circumstances.

EXCEPTIONS TO AMERICAN CYANAMID — WHEN GUIDELINES ARE MODIFIED

EXCEPTION 1 (NWL v Woods [1979]): Grant/refusal effectively disposes of action finally → degree of likelihood
claimant would succeed becomes a factor.

EXCEPTION 2 (Forse v Secarma [2019]): Delay to trial makes injunction effectively final (e.g. restraint of trade)
→ apply Cyanamid but merits are a factor in the balance of convenience.

EXCEPTION 3 — MANDATORY INJUNCTIONS (Nottingham Building Society v Eurodynamics [1993]): Four-

stage test. High degree of assurance of success = relevant factor (not absolute requirement).
Section 10 — Mercer v Carrington Lodge: Applying American
Cyanamid and the Mandatory Injunction Test
You are instructed on Thursday 6 November 2025. An application has been issued and listed for hearing at Croydon
County Court at 10.00am TOMORROW (Friday 7 November). The application is to restrain Carrington Lodge Hotel Ltd
from denying Mr Mercer access to the field on SUNDAY 9 November 2025 (the next scheduled car boot sale).
Instructing solicitors served the application notice and witness statement on the respondent's solicitors by email today.

10.1 — Procedural Questions

PROCEDURAL Q1: Has the 3-day notice requirement been complied with?
The hearing is TOMORROW (Friday 7 November). The application was served TODAY (Thursday 6
November). Even counting today as day 1 and tomorrow as the hearing date: 0 clear days have elapsed
— the 3-day notice requirement under CPR 23.7(1)(b) has NOT been formally complied with.

HOWEVER: This falls within the exception at PD23A para 3(1) — EXCEPTIONAL URGENCY. The boot
sale is THIS SUNDAY — there is literally no time to give formal 3-day notice. The court can therefore deal
with the application under r.23.7(4) — the court may direct that sufficient notice has been given and
proceed.

Additionally: because the application NOTICE and witness statement were served on the respondent's
solicitors by email today, there IS some notice — just less than 3 days. The respondent's solicitors will be
aware of the application and can attend. At the hearing, counsel should acknowledge the short notice
position, confirm informal notification was given, and invite the court to direct it has received sufficient
notice.

PROCEDURAL Q2: Application issued or just filed? Does it matter?

The instructions say: "Instructing Solicitors have TODAY ISSUED an application for an injunction." The
claim form itself does not appear to have been issued yet — the proceedings are described as being "In
the County Court at Croydon" with a claim number space left blank. This suggests the application may
have been issued BEFORE the main claim form was filed.

IF BEFORE ISSUE OF A CLAIM FORM, then r.25.8(2) applies. The order must:
• Include the applicant's UNDERTAKING TO ISSUE A CLAIM FORM IMMEDIATELY (or court gives
directions);
• Where possible, serve the claim form WITH the order;
• State in the title: "THE CLAIMANT AND DEFENDANT IN AN INTENDED ACTION."

Also: r.25.2(2) requires the matter to be URGENT or otherwise desirable in the interests of justice to grant
a pre-proceedings remedy. Here: clearly URGENT.

PROCEDURAL Q3: What documents must counsel take to the hearing?

Under CPR 25.8(1)(a): the application notice, supporting evidence (Mr Mercer's witness statement with
exhibits GAM1-3), and draft order must be FILED with the court at least 2 HOURS BEFORE THE
HEARING. These should already be filed.
 Counsel's PERSONAL DUTIES (Memory Corp v Sidhu [2000]):
• Written SKELETON ARGUMENT personally prepared and lodged with the court BEFORE the oral
hearing.
• Properly drafted INJUNCTION ORDER in Form N16A.
• At the hearing: draw court's attention to unusual features of the evidence, applicable law, and
formalities.

FULL AND FRANK DISCLOSURE — counsel must address at the hearing: the Siporex five points.
Crucially — counsel MUST DRAW ATTENTION TO the Hotel's counter-arguments:
• The Hotel's solicitors' letter (GAM3) alleges: (1) damage to the perimeter fence; (2) churning up of
the field; (3) damage to hotel statues and garden; (4) excessive rubbish.
• Mr Mercer's own evidence accepts: fence damage occurred (para 9); field was churned up (para
10); rubbish collection was "rather more cursory than usual" (para 10).
• These admissions must be disclosed to the court — NOT buried or minimised.

10.2 — Applying American Cyanamid/Nottingham Building Society to Mercer v

Carrington Lodge

PRELIMINARY: MANDATORY OR PROHIBITORY INJUNCTION?

The relief sought is an injunction preventing the Hotel from DENYING Mercer access — which requires the
Hotel to ALLOW ACCESS (a positive act). This is a MANDATORY injunction — it compels the Hotel to do
something (grant access), not merely refrain from doing something.

CONSEQUENCE: Apply the Nottingham Building Society v Eurodynamics [1993] four-stage test — not
standard American Cyanamid. Although in practice the courts often apply American Cyanamid principles
AS A STARTING POINT and then apply Nottingham Building Society as a modification.

Additionally: Exception 1 (NWL v Woods) may be relevant — this IS the boot sale. If the injunction is
refused and the sale cannot go ahead on Sunday, there is no longer any point in proceeding to trial on
whether Sunday's sale should have been allowed. The grant/refusal IS effectively final for this particular
sale.

STAGE 1: IS THERE A SERIOUS QUESTION TO BE TRIED?

THE CLAIM: Mercer is suing on the contract (5-year contract signed 23 July 2022). He claims:
• The Hotel has purported to terminate the contract with IMMEDIATE EFFECT in the letter of 5
November 2025 (GAM3).
• The contract expressly provides that it "may be terminated by mutual agreement of the parties or by
the giving of a minimum of 12 months' notice in writing by either party."
• The Hotel has NOT given 12 months' notice. They purport to terminate immediately.

ARGUMENT: The Hotel may have a right to terminate for BREACH, or the circumstances may give rise to
some other basis for immediate termination. But the contract's termination clause appears to require 12
months' notice. The damages caused by the hotel guests vaulting the fence were arguably NOT caused
by Mercer — they were caused by hotel guests.

CONCLUSION: There IS a serious question to be tried — namely, whether the Hotel was entitled to
terminate the contract immediately rather than giving 12 months' notice. This is a real dispute on the
construction and application of the contract.
HIGH DEGREE OF ASSURANCE (Nottingham stage 3 factor): Mercer has a STRONG argument that the
Hotel has breached the contract's notice clause. The contract is very clear — 12 months' notice. The
Hotel's attempt to terminate immediately based on damage caused by their own guests is a contestable
legal position. On the facts as evidenced, the balance tips in Mercer's favour at this stage.

STAGE 2: WOULD DAMAGES BE AN ADEQUATE REMEDY?

GUIDELINE (1) — Adequacy of damages for the APPLICANT (Mercer):

ARGUMENT THAT DAMAGES ARE NOT ADEQUATE:

• LOSS OF GOODWILL AND REPUTATION (para 12 of witness statement): Mercer's business
depends on REGULARITY and WORD OF MOUTH. If customers arrive to find no boot sale, they
will not return — even if Mercer eventually wins at trial. Damage to reputation is immediate and
largely irreversible.
• RIVAL SALE (para 12): A rival sale in Harpen Market is absorbing custom. If Ab Fab Fairs is seen
as unreliable, this rival will quickly absorb Mercer's custom. Lost custom to a competitor is not easily
restored by damages.
• EMPLOYMENT OF STEWARDS (para 5): Mercer employs local disadvantaged youth through a
youth initiative. The loss to these workers (their only income, their references) is a factor that goes
beyond simple financial compensation.
• UNIQUE ASSET: The Carrington Lodge Hotel field is described as "the perfect venue" (para 3) —
there is no equivalent alternative. Mercer cannot simply move to another field.
• DIFFICULTY OF QUANTIFICATION: The long-term reputational harm and loss of goodwill is
inherently speculative and difficult to quantify with precision.

AGAINST (Carrington Lodge's likely argument): The business has a 3-year trading history — income and
profits are quantifiable. Mercer could theoretically find another venue. The harm is temporary if the
contract is reinstated at trial.

BALANCE: On balance, damages are NOT adequate for Mercer. The combination of immediate
reputational harm, loss of goodwill, harm to community (stewards, charities), and the uniqueness of the
venue create the classic situation where damages cannot adequately compensate.

GUIDELINE (2) — Adequacy of cross-undertaking for the RESPONDENT (Carrington Lodge):

• If the injunction is wrongly granted: the Hotel's losses are limited to any disruption caused by
Sunday's boot sale proceeding (which has been proceeding monthly for 3 years without complaint
under previous management).
• Can Mercer pay? YES — para 14 of his witness statement: "I understand what an undertaking in
damages is and am willing and able to give such an undertaking if so required."
• CONCLUSION: The Hotel can be adequately compensated by the cross-undertaking, and Mercer
can pay.

STAGE 3: BALANCE OF CONVENIENCE

GUIDELINE (4) — STATUS QUO: The status quo IMMEDIATELY BEFORE the application is: the boot
sales have been proceeding monthly for over 3 years. The Hotel has now purported to revoke access.
Preserving the status quo (allowing the sale to continue) = grant the injunction.

GUIDELINE (5) — INCAPABLE OF COMPENSATION IN DAMAGES: The harm to Mercer if the injunction
is REFUSED (loss of goodwill, business reputation, youth stewards' income, community charities) is
LARGELY UNQUANTIFIABLE. The harm to the Hotel if the injunction is GRANTED (disruption from
Sunday's sale) is QUANTIFIABLE. On this factor, the balance favours Mercer.

CROSS-UNDERTAKING (SmithKline Beecham v Apotex [2006]): The willingness and ability of Mercer to
give a cross-undertaking is a very material consideration. Mercer has confirmed both willingness and
ability in his witness statement. This weighs significantly in favour of granting.

SPECIAL FACTORS (Guideline (7)): Community impact (stewards from youth initiative; charities collecting
at the fair). These are "special factors" in the particular circumstances that the court may properly take into
account.

EXCEPTION 1 (NWL v Woods): The grant or refusal IS effectively final for THIS boot sale. If refused
today, Sunday's sale cannot go ahead. The degree of likelihood that Mercer would succeed at trial (that
the Hotel was not entitled to terminate immediately) is therefore a relevant factor in the balance. Mercer's
case on the termination clause appears strong.

CONCLUSION: The balance of convenience STRONGLY FAVOURS MERCER. Grant the injunction.

FULL AND FRANK DISCLOSURE — WHAT COUNSEL MUST DISCLOSE AGAINST MERCER
Counsel MUST draw the court's attention to all adverse matters:
• The contract requires Ab Fab Fairs to "provide sufficient staff to ensure that any events held are
properly managed and that hotel property is protected" (contract, terms). The group of men who
damaged the fence were admitted to be on site during the sale — Mercer has a contractual
obligation to manage the event properly.
• Mercer ACCEPTS that fence damage was caused during the sale (para 9). He only disputes
responsibility (attributing it to hotel guests/hotel bar patrons).
• Mercer ACCEPTS that the field was "churned up" (para 10). He says this is normal in wet weather.
• Mercer ACCEPTS that the rubbish collection that day was "rather more cursory than usual" (para
10).
• Mercer ACCEPTS that the contract provides he is "liable for any damage to the field and its
surrounding fence and gates caused during the period of hire" — and damage was caused during
the period of hire.

The question of whether the damage was "caused during the period of hire" (and therefore Mercer's
liability) is a genuine legal dispute. The court must be told this.
Section 11 — All Assessment and Workshop Questions with
Complete Model Answers
Q1 (Assessment and Q-Sheet): Not generally required when making an
application under CPR Part 23

QUESTION 1 — FULL TEXT

[A] An application notice (form N244).
[B] Permission of the court to make the application.
[C] Any evidence in support of the application.
[D] A copy of any draft order which the applicant has attached to the application, containing the interim
relief sought from the court.

CORRECT ANSWER: [B] — Permission is NOT generally required

[B] is the ONLY thing NOT required. The whole object of being able to make applications is to keep courts
running efficiently. Permission is NOT generally required — whether the application is contentious or not. If
permission were required every time, the administrative strain would bring court offices to a halt.

[A] REQUIRED: CPR 23.3 — applicant MUST file an application notice (Form N244) unless a rule/PD
permits otherwise or the court dispenses with the requirement.
[C] REQUIRED: CPR 23.7(2) and (3); PD23A para 7 — application notice must be served with any
supporting written evidence.
[D] REQUIRED: CPR 23.7(3)(b) — application notice must be served with a copy of any draft order.

Q2: Parties to an application

interim applications and interim injunctions.

QUESTION 2 — FULL TEXT

[A] The party making the application will be the Claimant, called "the Applicant". The party resisting will be
the Defendant, called "the Respondent".
[B] The party making the application will be the Claimant, called "the Respondent". The party resisting will
be the Defendant, called "the Applicant".
[C] The party making the application may be either the Claimant or Defendant, called "the Applicant". The
party resisting may also be either, called "the Respondent".
[D] The party making the application may be either, called "the Applicant" or "the Respondent". The party
resisting may also be either, called "the Applicant" or "the Respondent".

CORRECT ANSWER: [C]

[C] is CORRECT. Either party — Claimant OR Defendant — may make an application at any stage.
Whoever makes it is called "the Applicant." Whoever resists it is called "the Respondent." Not all
applications are contested — the Respondent may agree or not bother to attend.
[A] WRONG: assumes only the Claimant can apply. Both parties can apply.
 [B] WRONG: reverses the labels entirely.
[D] WRONG: confuses the two labels — the Applicant and Respondent labels do not interchange.

Q3: What "notice" means under Part 23

QUESTION 3 — FULL TEXT

(i) The form filled in by the Applicant to trigger the application (Form N244).
(ii) A period of at least three clear days between the date of serving the N244 on the other party and the
date of the hearing.
(iii) Informing the other parties of the application less than three clear days before the hearing.
(iv) A period of at least three clear days between the date of issue of the N244 and the date of the hearing.
[A] Only (i) and (iii). [B] Only (i) and (ii). [C] Only (iii). [D] Only (iii) and (iv).

CORRECT ANSWER: [B] — Only (i) and (ii)

(i) CORRECT: "notice" = the APPLICATION NOTICE (Form N244) — CPR 23.3.
(ii) CORRECT: "notice" also = the MINIMUM PERIOD of at least 3 clear days between serving the N244
on the other party and the hearing — CPR 23.7(1)(b). "Giving notice" under Part 23 means giving a period
of at least 3 clear days to prepare — not merely informing.
(iii) WRONG: informal notification of less than 3 clear days is NOT "notice" under the strict Part 23
terminology. It is informal notification permitted by PD23A para 4 but it is not "notice."
(iv) WRONG: the 3-clear-day period runs from the date of SERVICE of the N244 — not from the date of
ISSUE. Service is what matters for the purposes of r.23.7(1)(b).

Q4: Exceptions to the 3-day rule

Rule 23.7(1)(b) CPR says that, in general, notice of at least three clear days must
elapse between the serving of the application notice on the other parties and the
hearing. Which, if any, of the circumstances below is/are exceptions to that rule?

QUESTION 4 — FULL TEXT

(i) Where there is exceptional urgency. (ii) Where there is a need for secrecy. (iii) Where the court permits
it. (iv) Where the parties consent. (v) Where a court order, rule, or practice direction permits.
[A] (i), (ii), and (v) only. [B] (i), (ii), (iii), and (v) only. [C] (iii) and (iv) only. [D] All of them.

CORRECT ANSWER: [D] — All five are exceptions

[D] is CORRECT. ALL five circumstances permit an application without the 3-day notice: PD23A para 3
and CPR 23.7(1)(b).
(i) Exceptional urgency — PD23A para 3(1).
(ii) Need for secrecy — an instance of the overriding objective (PD23A para 3(2)).
(iii) Court permits it — PD23A para 3(4).
(iv) Parties consent — PD23A para 3(3).
(v) A court order, rule, or PD permits — PD23A para 3(7).
Q5 (Assessment): Incorrect Statement

QUESTION 5 — FULL TEXT

[A] Exhibits to witness statements made in support of an application should not be filed unless the court
directs otherwise.
[B] An application hearing may be held remotely.
[C] If the claim is started in the Civil National Business Centre, an application made after a claim has been
started can only be made to the Civil National Business Centre.
[D] The contents of an application notice may be used as evidence (otherwise than at trial) provided the
contents have been verified by a statement of truth.

CORRECT ANSWER (the INCORRECT statement): [C]

[C] is INCORRECT: PD23A para 5A.1 provides that if the claim is started in the CNBC, an application
made after a claim has been started must be made to the CNBC OR the County Court hearing centre
where the claim is being dealt with. BOTH options are available — not just the CNBC.
[A] is CORRECT: PD23A para 7.4 — exhibits must NOT be filed with the court unless the court directs.
[B] is CORRECT: PD23A para 6.1 — hearings may be in person, remotely, or partially remotely.
[D] is CORRECT: PD23A para 7.5 — contents of application notice may be used as evidence (otherwise
than at trial) if verified by a statement of truth.

Q1 (Workshop): Hannah v Pavan — Where to Make the Application

QUESTION 1 (Workshop) — FULL TEXT

Hannah issues proceedings against Pavan in the CNBC. Transferred to Birmingham. Trial listed for 28
November at Wrexham. Hannah wishes to apply to extend time for service of her expert's report. She
proposes to apply to Coventry. To which court should she make the application?
[A] Wrexham. [B] County Court Money Claims Centre. [C] Birmingham. [D] Coventry.

CORRECT ANSWER: [A] WREXHAM

[A] is CORRECT. CPR 23.2(3): "If the parties have been notified of a fixed date for the trial, an application
must be made to the court where the trial is to take place." The parties have been notified of the 28
November trial date at Wrexham. Therefore ALL subsequent applications must be made to Wrexham —
regardless of where the claim was started, transferred to, or where the parties live or work.
[B] WRONG: The County Court Money Claims Centre (CNBC/CCMCC) is not the trial venue. Once a trial
date is fixed and notified, r.23.2(3) is conclusive.
[C] WRONG: Birmingham is where the claim is being dealt with administratively — but r.23.2(3) overrides
r.23.2(1) once a trial date has been fixed and notified.
[D] WRONG: The parties working in Coventry is entirely irrelevant. No rule directs to Coventry.

Q2 (Workshop): Court's Powers on Disposing of an Interim Application

Which of the following is NOT a power that the court has available to it upon
disposing of an interim application?
 QUESTION 2 (Workshop) — FULL TEXT
[A] Proceeding in the absence of the Applicant or Respondent if they fail to attend.
[B] Making an order despite the fact that the Respondent has not been given notice.
[C] Dismissing an interim application and, upon concluding that the application was entirely without merit,
the court REFUSES to consider making a civil restraint order.
[D] Determining the application without a hearing.

CORRECT ANSWER (the NOT a power): [C]

[C] is NOT a permitted course — it is the CORRECT ANSWER. Upon dismissing an application and
concluding it is totally without merit, the court MUST consider making a civil restraint order (CPR 23.12).
Refusing to consider it is not an option the rules permit.
[A] IS a power: CPR 23.11 — court may proceed in the absence of the Applicant or Respondent.
[B] IS a power: CPR 23.9/25.3(2) — without-notice orders are permitted where there are good reasons.
[D] IS a power: CPR 23.8 — the court may deal with an application without a hearing.

Q3 (Workshop): When an Application is "Made"

If the court directs that an application is “made” by the 28 March 2025, what does
this mean?

QUESTION 3 (Workshop) — FULL TEXT

[A] The application must be date stamped by 28 March 2025.
[B] The application must be issued by 28 March 2025.
[C] The application must be received by the court by 28 March 2025.
[D] The application must be served on the Respondent by 28 March 2025.

CORRECT ANSWER: [C]

[C] is CORRECT. CPR 23.5: an application is "made" when the application notice is RECEIVED by the
court. Not when it is date-stamped (which can happen later), not when it is issued (formal entry on the
record), and not when it is served on the respondent.
Hallam Estates v Baker [2014]: where a document is received on one day but not date-stamped until the
next, it is received on the earlier day.

Q4 (Workshop): Last Day to Post Application Notice

QUESTION 4 (Workshop) — FULL TEXT WITH FULL CALCULATION

Application listed Wednesday 4 June 2025. The Applicant proposes to serve by post. What is the last day
that can be posted?
[A] Monday 2 June. [B] Friday 30 May. [C] Wednesday 28 May. [D] Tuesday 27 May.

CORRECT ANSWER: [D] Tuesday 27 May 2025 — FULL CALCULATION

 STEP 1 — Identify the minimum notice period: CPR 23.7(1)(b) = at least 3 CLEAR DAYS before the
hearing.

STEP 2 — Count back 3 clear days from the hearing (using CPR 2.8(2)–(3) — clear days = neither the
first day of the period nor the day of the event is counted):
• Hearing = Wednesday 4 June [excluded].
• 3 clear days counting back: Tuesday 3 June (day 1), Monday 2 June (day 2), Friday 30 May (day 3)
[Sunday 1 June = not a business day, skipped].
• The application must be DEEMED SERVED by the day before the first clear day = THURSDAY 29
MAY.

STEP 3 — Work back from deemed service to posting (CPR 6.26): service by first class post is deemed
on the "second day after it was posted... if a business day; if not, the next business day."
• To be deemed served Thursday 29 May: must be POSTED ON TUESDAY 27 MAY (27 + 2
business days = Thursday 29 May).
ANSWER: [D] TUESDAY 27 MAY 2025.

[A] Monday 2 June: only 1 clear day before the hearing — insufficient.
[B] Friday 30 May: if posted Friday, deemed served Monday 2 June; Monday 2 June is only 1 clear day
before Wednesday 4 June — insufficient.
[C] Wednesday 28 May: if posted Wednesday, deemed served Friday 30 May; then only 2 clear days
(Friday 30, Monday 2, Tuesday 3) — wait, Friday 30 May + 2 business days = Tuesday 3 June. Still
insufficient (Tuesday 3 = 1 clear day before Wednesday 4 June hearing). WRONG.

Q5 (Workshop): Order in which American Cyanamid factors are considered

QUESTION 5 (Workshop) — FULL TEXT

(i) Whether damages are an adequate remedy for the Respondent. (ii) Whether there is a serious question
to be tried. (iii) Whether the Applicant is in a financial position to pay damages if required. (iv) Where the
narrow balance of convenience lies. (v) Whether damages are an adequate remedy for the Applicant. (vi)
Whether the Respondent is in a financial position to pay damages if required. (vii) The status quo.
[A] (ii), (vii), (i), (vi), (v), (iii), (iv). [B] (ii), (v), (vi), (i), (iii), (iv), (vii). [C] (ii), (iv), (vi), (i), (iii), (v), (vii). [D] (ii),
(i), (iii), (v), (vi), (iv), (vii).

CORRECT ANSWER: [B] — (ii), (v), (vi), (i), (iii), (iv), then (vii)
[B] is CORRECT. From WB paras 15-7, 15-10, 15-11, 15-12, 15-14:
• (ii) Is there a SERIOUS QUESTION TO BE TRIED? — Stage 1 threshold.
• (v) Would damages adequately compensate the APPLICANT? — Guideline (1) first question.
• (vi) Is the RESPONDENT in a financial position to pay such damages? — Guideline (1) second
question.
• (i) Would damages adequately compensate the RESPONDENT under the cross-undertaking? —
Guideline (2) first question.
• (iii) Is the APPLICANT in a financial position to pay if required? — Guideline (2) second question.
• (iv) Where does the NARROW BALANCE OF CONVENIENCE lie? — Guidelines (3)–(7).
• (vii) STATUS QUO — only reached if all other factors are EVENLY BALANCED (WB para 15-14).

[A], [C], [D] all place status quo too early or get other factors in wrong order.
Section 12 — Master Reference Tables
Table 1 — Key Time Limits for Unit 7
Rule/Provision Time Limit
Minimum notice of hearing At least 3 CLEAR DAYS before the hearing (from date of SERVICE of
(r.23.7(1)(b)) application notice).
When application is "made" When the application notice is RECEIVED by the court (not when issued or
(r.23.5) served).
Filing papers before without- At least 2 HOURS before the hearing wherever possible.
notice hearing (r.25.8(1)(a))

Set aside a without-notice order Within 7 DAYS after service of the order (unless court directs otherwise).
(r.23.10(2))

Set aside a r.23.8(1)(c) order Within specified period OR 7 DAYS after service (if no period specified).
(no hearing, court's own
motion)

Return date (r.25.9(3)(c)) MANDATORY in every without-notice injunction order — as soon as

practicable (usually 7–14 days).
After without-notice order: file Same or next WORKING DAY.
application notice and pay fee
(r.25.9(3)(d))

After before-issue order: issue Same or next WORKING DAY.

claim form and pay fee
(r.25.9(3)(e))

Table 2 — American Cyanamid: The Seven-Stage Reference

Stage/Guideline Key Content and Exam Points
STAGE 1 — Serious Low threshold. NOT prima facie case. NOT balance of probabilities. Must show
Question REAL PROSPECT of success. Court does NOT conduct a mini-trial. Take
applicant's case at face value unless plainly false or fanciful (Sportsdirect [2024]).
GUIDELINE (1) — Adequate remedy for applicant AND can respondent pay? If YES both: normally no
Applicant's damages injunction. If NO (inadequate OR respondent cannot pay): proceed to Guideline (2).
GUIDELINE (2) — Adequate remedy for respondent under cross-undertaking AND can applicant pay?
Respondent's If YES both: no reason to refuse injunction. If NO: a factor against granting.
damages

GUIDELINE (3) — Doubt as to adequacy of damages → consider all relevant factors (not exhaustive).
Balance

GUIDELINE (4) — Only if factors EVENLY BALANCED → preserve status quo immediately before the
Status quo application. NOT a default — reached only after guidelines (3), (5), (6) leave the
balance evenly poised.
GUIDELINE (5) — Extent to which disadvantages are INCAPABLE OF COMPENSATION IN
Uncompensatable DAMAGES is always significant.
harm

GUIDELINE (6) — ONLY if uncompensatable disadvantage does not differ widely AND one party's
Relative strength case is disproportionately stronger on UNDISPUTED facts. NOT a mini-trial.
(LAST RESORT)

GUIDELINE (7) — Any other special factors in the particular circumstances of the case.
Special factors

Table 3 — Exceptions to American Cyanamid

Exception When It Applies

Exception Grant/refusal will EFFECTIVELY DISPOSE OF THE ACTION FINALLY — nothing left to
1 — Final try.
disposal

Exception Anticipated delay means the relevant period of restraint will expire before trial —
2 — Delay effectively final.
to trial

Exception Application is for a MANDATORY (positive act) injunction rather than prohibitory.
3—
Mandatory
injunctions

Table 4 — Key Cases for Unit 7

Case Core Principle
American Cyanamid Co v The three-stage structure for interim injunctions. Threshold = serious
Ethicon Ltd [1975] AC 396 HL question to be tried (not prima facie case). Lord Diplock's 12 principles.
Fourie v Le Roux [2007] UKHL SCA 1981 s.37 CONFIRMS (does not confer) the court's power to grant
1 injunctions. Wide discretion: "just and convenient." Usually exercised within
existing practice but practice is not immutable.
National Commercial Bank Without-notice only where (1) giving notice would enable defeat of purpose
Jamaica v Olint Corp [2009] OR (2) literally no time. Even in (2), short notice should normally be given.
UKPC Balance = "least irremediable prejudice."
R v Kensington Income Tax Injunction may be discharged for non-disclosure EVEN IF order would
Commissioners [1917] 1 KB probably have been made anyway. Two-fold purpose: deprive wrongdoer
486 of advantage; deter others.
Siporex Trade SA v Comdel Bingham J's five-point duty of full and frank disclosure. Approved in Marc
Commodities [1986] Rich v Krasner [1999] CA. Consistently followed.
Tugushev v Orlov [2019] Carr J's 13 principles on full and frank disclosure — approved by Court of
EWHC 2031 (Comm); Derma Appeal. First port of call for practitioners.
Med v Ally [2024] CA

Hunt v Ubhi [2023] EWCA Civ Ultimate touchstone of full and frank disclosure: whether the presentation
417 of the application is FAIR IN ALL MATERIAL RESPECTS.
Brink's-MAT Ltd v Elcombe Leading authority on review of duty of full and frank disclosure.
[1988] 1 WLR 1350 CA Applications to set aside should not be made on slender grounds.
Memory Corp v Sidhu [2000] Advocate's PERSONAL DUTIES in without-notice injunction hearings:
prepare skeleton argument; prepare draft order; draw unusual features to
court's attention at the hearing.
NWL Ltd v Woods [1979] 1 Exception 1: where grant/refusal effectively ends the action, the degree of
WLR 1294 HL likelihood of success at trial becomes a factor in the balance.
 Cayne v Global Natural "Broad brush" approach where trial clearly will not occur. Court asks: what
Resources [1984] 1 All ER 225 can it do to best avoid injustice?
CA

Forse v Secarma Ltd [2019] Exception 2 (delay/restraint of trade): apply Cyanamid but merits of claim
EWCA Civ 215 are a factor in balance of convenience.
Nottingham Building Society v Four-stage test for mandatory injunctions. High degree of assurance =
Eurodynamics [1993] FSR 468 relevant factor. Endorsed by Zockoll v Mercury [1998] CA.
Zockoll v Mercury Nottingham Building Society is "all the citation that should in future be
Communications [1998] FSR necessary" for mandatory injunctions.
354 CA

F Hoffmann-La Roche v Cross-undertaking given to the COURT — not the respondent. Cannot be
Secretary of State [1975] AC compelled; but withholding it means no injunction. Three consequences of
295 HL undertaking being given to court.
SmithKline Beecham v Apotex Willingness to give cross-undertaking is a very material consideration. Fact
Europe [2006] EWCA Civ 658 that unsuccessful claimant must compensate defendant is a major factor in
balance of convenience.
Allen v Jambo Holdings [1980] Court will not deny a legally aided claimant an injunction simply because
1 WLR 1252 CA their undertaking would be of limited value.
JSC Mezhdunarodniy Bank v If applicant cannot give unlimited undertaking: burden on them to show
Pugachev [2015] EWCA Civ external funds not available and why a lesser undertaking should be
139 accepted.
Birch v Birch [2017] UKSC 53 Court has NO POWER TO IMPOSE any variation of a voluntary
undertaking. Apply for RELEASE from or DISCHARGE of the undertaking
— not variation.
Novartis AG v Hospira UK Ltd Court has jurisdiction to grant interim protection by injunction to an
[2013] EWCA Civ 583 unsuccessful party PENDING AN APPEAL.
Hallam Estates v Baker [2014] Application is "made" when received by the court. If received on one day
EWCA Civ 661 but date-stamped the next, received on the earlier day.
[Link] v Newcastle At Stage 1, court takes applicant's case at face value unless plainly false or
United [2024] EWCA Civ 532 fanciful. Not wrong to consider contentious evidence — but cannot conduct
a mini-trial.
Wolverhampton CC v London Injunctive relief may be granted even where there is no substantive claim
Gypsies and Travellers [2023] for relief — including freezing orders in support of a foreign judgment.
UKSC 47

Table 5 — Definitive Exam Traps for Unit 7

Wrong Statement Correct Rule
"Permission is required to make an WRONG. CPR 23.3: permission is NOT generally required. Q1 [B]
interim application." = the only thing NOT required.
"An interim application can only be WRONG. CPR 23.1: either party may apply — the applicant is the
made by the Claimant." party making the application regardless of their role in the main
claim.
"Giving notice" under Part 23 means WRONG. Under Part 23, "giving notice" means giving at least 3
informally telling the other party. CLEAR DAYS for the other party to prepare. Informal notification ≠
"notice."
"The 3-day period runs from the date WRONG. CPR 23.7(1)(b): the period runs from the date of
 the N244 is ISSUED." SERVICE of the application notice — not issue.
"An application is made when it is WRONG. CPR 23.5: an application is made when RECEIVED by
issued by the court." the court. Hallam Estates v Baker [2014]: received on earlier day
even if date-stamped later.
"If the claim started at the CNBC, all WRONG. PD23A para 5A.1: applications go to the CNBC OR the
subsequent applications MUST go to hearing centre where the claim is being dealt with — both options
the CNBC only." are available.
"Exhibits to witness statements in WRONG. PD23A para 7.4: exhibits must NOT be filed unless the
support of applications must be filed court directs.
with the court."

"On dismissing an application as totally WRONG. CPR 23.12: the court MUST consider whether to make a
without merit, the court may decline to civil restraint order. Consideration is mandatory.
consider a CRO."

"An interim injunction may only be WRONG. CPR r.25.1(4): interim remedy may be granted
granted if the claimant has also WHETHER OR NOT there has been a claim for a final remedy of
claimed a final injunction." the same kind.
"The court must be satisfied on the WRONG. American Cyanamid: threshold = serious question to be
balance of probabilities that the tried (real prospect of success). NOT balance of probabilities.
claimant will succeed."

"If damages are adequate for the WRONG. If damages are adequate AND the respondent can pay:
applicant, the court cannot grant an the court NORMALLY (not invariably) will not grant an injunction.
injunction." Exceptional circumstances can still justify an injunction.
"The status quo is always the starting WRONG. Status quo (Guideline (4)) is only reached IF all other
point in the balance of convenience." factors are EVENLY BALANCED. It is not the default starting point.
"Guideline (6) (relative strength of WRONG. Guideline (6) is a LAST RESORT and can ONLY be used
cases) can be used where there is a where the relevant facts are UNDISPUTED — not to resolve factual
factual dispute." controversies.
"The cross-undertaking in damages is WRONG. Hoffmann-La Roche [1975]: the cross-undertaking is
given to the Respondent." given to the COURT. Three consequences: court interprets it; non-
parties can enforce it; non-compliance triggers court inquiry.
"The court can order a party to give a WRONG. The court CANNOT compel a cross-undertaking. But it
cross-undertaking in damages." CAN refuse to grant the injunction if one is not offered.
"For a mandatory injunction, the WRONG. Nottingham Building Society stage (3): a high degree of
applicant must have a high degree of assurance is a RELEVANT FACTOR — not an absolute
assurance of success." precondition. Even without it, a mandatory injunction may be
granted if the risk of injustice if refused sufficiently outweighs the
risk if granted (stage (4)).
"A party may apply to vary a voluntary WRONG. Birch v Birch [2017] UKSC 53: there is NO application to
undertaking given to the court." "vary" an undertaking. The correct route is an application for
RELEASE FROM or DISCHARGE OF the undertaking, which may
be accompanied by an offer of a new undertaking in different terms.
"The duty of full and frank disclosure WRONG. The duty continues until the respondent has been
ends once the without-notice order is SERVED with the injunction AND is in a position to apply to vary or
made." discharge it.

Sources: CPR 23.1–23.12 | PD23A paras 2–7 | CPR 25.1–25.3 | CPR 25.8–25.9 | SCA 1981 s.37 | County Courts Act
1984 s.38 | WB Vol 2 paras 15-4, 15-7 to 15-8, 15-9.1, 15-10 to 15-15, 15-17 to 15-18, 15-20, 15-24 to 15-27, 15-30;
WB Commentary 25.1.31, 25.1.32, 25.3.2–25.3.4, 25.8.1–25.8.5 | American Cyanamid Co v Ethicon Ltd [1975] AC 396
HL | Fourie v Le Roux [2007] UKHL 1 | National Commercial Bank Jamaica v Olint Corp [2009] UKPC | R v Kensington
Income Tax Commissioners [1917] 1 KB 486 | Siporex Trade SA v Comdel Commodities [1986] 2 Lloyd's Rep 428 |
Marc Rich v Krasner [1999] CA | Tugushev v Orlov [2019] EWHC 2031 (Comm) | Derma Med v Ally [2024] CA | Hunt v
Ubhi [2023] EWCA Civ 417 | Brink's-MAT Ltd v Elcombe [1988] 1 WLR 1350 CA | Memory Corp v Sidhu [2000] | NWL
Ltd v Woods [1979] 1 WLR 1294 HL | Cayne v Global Natural Resources [1984] 1 All ER 225 CA | Forse v Secarma Ltd
[2019] EWCA Civ 215 | Nottingham Building Society v Eurodynamics [1993] FSR 468 | Zockoll v Mercury
Communications [1998] FSR 354 CA | F Hoffmann-La Roche v Secretary of State [1975] AC 295 HL | SmithKline
Beecham v Apotex Europe [2006] EWCA Civ 658 | Allen v Jambo Holdings [1980] 1 WLR 1252 CA | JSC
Mezhdunarodniy Bank v Pugachev [2015] EWCA Civ 139 | Birch v Birch [2017] UKSC 53 | Novartis AG v Hospira UK
Ltd [2013] EWCA Civ 583 | Hallam Estates v Baker [2014] EWCA Civ 661 | [Link] v Newcastle United [2024]
EWCA Civ 532 | Wolverhampton CC v London Gypsies and Travellers [2023] UKSC 47 | Fellowes & Son v Fisher
[1976] CA | Djurberg v Thames Water [2024] EWCA Civ 549 | Form N16A (General Form of Application for Injunction) |
BSB Civil Litigation Syllabus Areas 15 and 17

1
MULTIPLE CHOICE
Which ONE of the following is NOT generally required when making an application under CPR
Part 23?
1. Option A
An application notice (form N244).
2. Option B
Permission of the court to make the application
3. Option C
Evidence in support of the application.
4. Option D
A copy of any draft order which the applicant has attached to the application, containing
the interim relief sought from the court.
Feedback
The correct answer is B. [B] is the only thing that is not a requirement. The whole object
of being able to make applications is to keep the court's involvement in the parties' business to
a minimum and to keep courts running smoothly and fast. Whether the application is
contentious or not, permission is not generally required to make it. If it were necessary to
obtain permission every time, then the administrative strain would bring the court offices to
a halt. [A] is a requirement: CPR 23.3. [C] is a requirement: CPR 23.7(2) &(3) and 23A,
PD.7. [D] is a requirement: CPR 23.7(3)(b).
Question 2
2
MULTIPLE CHOICE
Which ONE of the following correctly describes the parties to an application and their
relationship to each other?
1. Option A
The party making the application will be the Claimant although, in the context of the
application, the Claimant will be called ‘the Applicant’ instead. The party resisting the
application will be the Defendant although, in the context of the application, the
Defendant will be referred to as ‘the Respondent’ instead.
2. Option B
The party making the application will be the Claimant although, in the context of the
application, the Claimant will be called ‘the Respondent’ instead. The party resisting the
application will be the Defendant although, in the context of the application, the
Defendant will be called ‘the Applicant’ instead.
 3. Option C
The party making the application may be either the Claimant or Defendant although, in
the context of the application, that party will be called ‘the Applicant’ instead. The party
resisting the application may also either be the Claimant or Defendant, although in the
context of the application that party will be called ‘the Respondent’ instead.
4. Option D
The party making the application may be either the Claimant or Defendant, although in
the context of the application that party will be called either ‘the Applicant’ or ‘the
Respondent’ instead. The party resisting the application may also either be the
Claimant or Defendant, although in the context of the application that party will be
called ‘the Applicant’ or ‘the Respondent’ instead.
Feedback
Correct answer is C. Either party may wish to ask the court to do something, and they will do
this by "applying" for it. The party who does this is called ‘the Applicant', regardless of which
side they are on, and they are only referred to under that different label for the short time it
takes for the application to be dealt with by the court. Not all applications are objected to by
the other side, even when the overall dispute is being fiercely fought. This means that the
other side may not bother to attend court as a Respondent on an oral application because the
only "responding" would consist of "we agree" or "we don't object". The Respondent will only
be said to be "resisting" an application when they do not want the Applicant to be given
what they are asking the court for, and attend court to explain why. For obvious reasons, this
is called a contested application.
Question 3
3
MULTIPLE CHOICE
Under the strict terminology of CPR Part 23, which of the following is/are described by the word
"notice"?

(i) The form filled in by the Applicant to trigger the application, known as a N244.
(ii) A period of at least three clear days between the date of serving the N244 form on the
other party and the date of the hearing.
(iii) Informing the other parties of the application less than three clear days before the
hearing.
(iv) A period of at least three clear days between the date of issue of the N244 form and the
date of the hearing.
1. Option A
Only (i) and (iii) are correct
2. Option B
Only (i) and (ii) are correct
3. Option C
Only (iii) is correct
4. Option D
Only (iii) and (iv) are correct.
Feedback
Correct answer is B. [B] is correct. Only (i) and (ii) are described by the word ‘notice’ under
CPR 23. Confusingly, the word "notice" can refer to three completely different things,
potentially causing conversational confusion.
In the correct response (i) "notice" can refer to the piece of paper called the Application Notice
(form N244): For example, see CPR 23.3.

In the correct response (ii) "notice" can refer to the statutory period of "at least three clear
days". Therefore it is very important to remember that, under Part 23, "giving notice" does not
just mean giving a warning that a hearing of the application is on the way: it is more
than that. It means giving the other parties a period of at least three clear days in which to
prepare for the hearing: CPR 23.7(1)(b).

Response (iii) is not correct under the strict terminology of Part 23. When the Applicant has too
little time to give formal notice of at least three clear days, he may be allowed to proceed in
certain circumstances such as exceptional urgency (23APD.3). In those circumstances he may
well tell his opponent what he has applied for. However, such informal notification must not be
confused with the term "notice" used in its formal sense under Part 23 where it always means
serving your opponent "3 clear days” before the hearing date.

Response (iv) is not correct because it talks about issue of the application notice, rather than
service which is what matters: CPR 23.7(1)(b).
Question 4
4
MULTIPLE CHOICE
Rule 23.7(1)(b) CPR says that, in general, notice of at least three clear days must elapse
between the serving the application notice on the other parties and the hearing. Which, if any,
of the circumstances below is/are exceptions to that rule?

(i) Where there is exceptional urgency

(ii) Where there is a need for secrecy
(iii) Where the court permits it
(iv) Where the parties consent
(v) Where a court order, rule or practice direction permits
1. Option A
(i), (ii) and (v) only are exceptions to the rule
2. Option B
(i), (ii) (iii) and (v) only are exceptions to the rule
3. Option C
(iii) and (iv) only are exceptions to the rule
4. Option D
All of them are exceptions to the rule
Feedback
Correct answer is D. [D] is correct. All of these five circumstances are exceptions to the rule.
Any of these entitle a party to make an interim application without giving the 3 days' formal
notice required by CPR 23.7(1)(b). They are set out at Paragraph 3 of Practice Direction
A to Part 23 (23APD.3). The only one which does not specifically appear there is "where
there is a need for secrecy". But, of course, secrecy is only one instance of furthering the
overriding objective which is number (2) on the list in 23APD.3.
Question 5
5
MULTIPLE CHOICE
Which ONE of the following statements is INCORRECT?
 1. Option A
Exhibits to witness statements made in support of an application should not be filed
unless the court directs otherwise.
2. Option B
An application hearing may be heard remotely.
3. Option C
If the claim is started in the Civil National Business Centre, an application made after a
claim has been started can only be made to the Civil National Business Centre.
4. Option D
The contents of an application notice may be used as evidence (otherwise than at trial)
provided the contents have been verified by a statement of truth.
Feedback
[C] is incorrect, as PD23A para. 5.1 provides that if the claim is stated in the Civil National
Business Centre, an application made after a claim has been started must be made to the Civil
National Business Centre OR County Court hearing centre where the claim is being dealt with.

[A] is correct: see PD23A, para. 7.4.

[B] is correct: see PD23A, para 6.1.

[D] is correct: see PD23A, para 7.5.