High Court Injunctions: Powers, Evidence, and Orders for Search and Freezing, Study notes of Civil procedure

Download High Court Injunctions: Powers, Evidence, and Orders for Search and Freezing and more Study notes Civil procedure in PDF only on Docsity! PRACTICE DIRECTION 25A INTERIM INJUNCTIONS This Practice Direction supplements CPR Part 25 Jurisdiction 1.1 High Court Judges and any other Judge duly authorised may grant ‘search orders’1 and ‘freezing injunctions’2. 1.2 In a case in the High Court, Masters and district judges have the power to grant injunctions: (1) by consent, (2) in connection with charging orders and appointments of receivers, (3) in aid of execution of judgments. 1.3 In any other case any judge who has jurisdiction to conduct the trial of the action has the power to grant an injunction in that action. 1.4 A Master or district judge has the power to vary or discharge an injunction granted by any Judge with the consent of all the parties. Making an application 2.1 The application notice must state: (1) the order sought, and (2) the date, time and place of the hearing. 2.2 The application notice and evidence in support must be served as soon as practicable after issue and in any event not less than 3 days before the court is due to hear the application3. 2.3 Where the court is to serve, sufficient copies of the application notice and evidence in support for the court and for each respondent should be filed for issue and service. 2.4 Whenever possible a draft of the order sought should be filed with the application notice and a disk containing the draft should also be available to the court in a format compatible with the word processing software used by the court. This will enable the court officer to arrange for any amendments to be incorporated and for the speedy preparation and sealing of the order. Evidence 3.1 Applications for search orders and freezing injunctions must be supported by affidavit evidence. 3.2 Applications for other interim injunctions must be supported by evidence set out in either: (1) a witness statement, or 1 Rule 25.1(1)(h). 2 Rule 25.1(1)(f). 3 Rule 23.7(1) and (2) and see rule 23.7(4) (short service). PRACTICE DIRECTION PART 25A CIVIL PROCEDURE RULES INTERIM INJUNCTIONS Part 25A page 1 PRACTICE DIRECTION APRIL 2010 P A R T 2 5 A P R A C T IC E D IR E C T IO N (2) a statement of case provided that it is verified by a statement of truth,1 or (3) the application provided that it is verified by a statement of truth, unless the court, an Act, a rule or a practice direction requires evidence by affidavit. 3.3 The evidence must set out the facts on which the applicant relies for the claim being made against the respondent, including all material facts of which the court should be made aware. 3.4 Where an application is made without notice to the respondent, the evidence must also set out why notice was not given. (See Part 32 and Practice Direction 32 for information about evidence.) Urgent applications and applications without notice 4.1 These fall into two categories: (1) applications where a claim form has already been issued, and (2) applications where a claim form has not yet been issued, and, in both cases, where notice of the application has not been given to the respondent. 4.2 These applications are normally dealt with at a court hearing but cases of extreme urgency may be dealt with by telephone. 4.3 Applications dealt with at a court hearing after issue of a claim form: (1) the application notice, evidence in support and a draft order (as in 2.4 above) should be filed with the court two hours before the hearing wherever possible, (2) if an application is made before the application notice has been issued, a draft order (as in 2.4 above) should be provided at the hearing, and the application notice and evidence in support must be filed with the court on the same or next working day or as ordered by the court, and (3) except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application. 4.4 Applications made before the issue of a claim form: (1) in addition to the provisions set out at 4.3 above, unless the court orders otherwise, either the applicant must undertake to the court to issue a claim form immediately or the court will give directions for the commencement of the claim2, (2) where possible the claim form should be served with the order for the injunction, (3) an order made before the issue of a claim form should state in the title after the names of the applicant and respondent ‘the Claimant and Defendant in an Intended Action’. 4.5 Applications made by telephone: (1) where it is not possible to arrange a hearing, application can be made between 10.00 a.m. and 5.00 p.m. weekdays by telephoning the Royal Courts of Justice on 020 7947 6000 and asking to be put in contact with a High Court Judge of the appropriate Division available to deal with an emergency application in a High Court matter. The appropriate district registry may also be contacted by telephone. In county court proceedings, the appropriate county court should be contacted, (2) where an application is made outside those hours the applicant should either – (a) telephone the Royal Courts of Justice on 020 7947 6000 where he will be put in contact with the clerk to the appropriate duty judge in the High Court (or the appropriate area Circuit Judge where known), or 1 See Part 22. 2 Rule 25.2(3). CIVIL PROCEDURE RULES Part 25A page 2 INTERIM INJUNCTIONS Practice direction APRIL 2010 (6) the Supervising Solicitor must make a list of all material removed from the premises and supply a copy of the list to the respondent, (7) no material shall be removed from the premises until the respondent has had reasonable time to check the list, (8) if any of the listed items exists only in computer readable form, the respondent must immediately give the applicant’s solicitors effective access to the computers, with all necessary passwords, to enable them to be searched, and cause the listed items to be printed out, (9) the applicant must take all reasonable steps to ensure that no damage is done to any computer or data, (10) the applicant and his representatives may not themselves search the respondent’s computers unless they have sufficient expertise to do so without damaging the respondent’s system, (11) the Supervising Solicitor shall provide a report on the carrying out of the order to the applicant’s solicitors, (12) as soon as the report is received the applicant’s solicitors shall – (a) serve a copy of it on the respondent, and (b) file a copy of it with the court, and (13) where the Supervising Solicitor is satisfied that full compliance with paragraph 7.5(7) and (8) above is impracticable, he may permit the search to proceed and items to be removed without compliance with the impracticable requirements. 7.6 General The Supervising Solicitor must not be an employee or member of the applicant’s firm of solicitors. 7.7 If the court orders that the order need not be served by the Supervising Solicitor, the reason for so ordering must be set out in the order. 7.8 The search order must not be carried out at the same time as a police search warrant. 7.9 There is no privilege against self incrimination in – (1) Intellectual Property cases in respect of a ‘related offence’ or for the recovery of a ‘related penalty’ as defined in section 72 Senior Courts Act 1981; (2) proceedings for the recovery or administration of any property, for the execution of a trust or for an account of any property or dealings with property, in relation to – (a) an offence under the Theft Act 1968 (see section 31 of the Theft Act 19681); or (b) an offence under the Fraud Act 2006 (see section 13 of the Fraud Act 20062) or a related offence within the meaning given by section 13(4) of that Act – that is, conspiracy to defraud or any other offence involving any form of fraudulent conduct or purpose; or (3) proceedings in which a court is hearing an application for an order under Part IV or Part V of the Children Act 1989 (see section 98 Children Act 1989). However, the privilege may still be claimed in relation to material or information required to be disclosed by an order, as regards potential criminal proceedings outside those statutory provisions. 7.10 Applications in intellectual property cases should be made in the Chancery Division. 7.11 An example of a Search Order is annexed to this Practice Direction. This example may be modified as appropriate in any particular case. 1 1968 c. 60. 2 2006 c. 35. CIVIL PROCEDURE RULES INTERIM INJUNCTIONS Part 25A page 5 PRACTICE DIRECTION APRIL 2010 DELIVERY-UP ORDERS 8.1 The following provisions apply to orders, other than search orders, for delivery up or preservation of evidence or property where it is likely that such an order will be executed at the premises of the respondent or a third party. 8.2 In such cases the court shall consider whether to include in the order for the benefit or protection of the parties similar provisions to those specified above in relation to injunctions and search orders. INJUNCTIONS AGAINST THIRD PARTIES 9.1 The following provisions apply to orders which will affect a person other than the applicant or respondent, who: (1) did not attend the hearing at which the order was made; and (2) is served with the order. 9.2 Where such a person served with the order requests – (1) a copy of any materials read by the judge, including material prepared after the hearing at the direction of the judge or in compliance with the order; or (2) a note of the hearing, the applicant, or his legal representative, must comply promptly with the request, unless the court orders otherwise. CIVIL PROCEDURE RULES Part 25A page 6 INTERIM INJUNCTIONS Practice direction APRIL 2010 Annex FREEZING INJUNCTION Before The Honour able Mr J ustice Claim No . Dated Applicant Respondent Name , address and reference of Respondent PENAL NOTICE IF YOU [ ]1 OU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED. ANY O PERMITS THE RESPONDENT TO BREA AY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HA D. IN THE HIGH COURT OF JUSTICE [ ] DIVISION [ ] 1 Insert name of Respondent . Seal CIVIL PROCEDURE RULES INTERIM INJUNCTIONS Part 25A page 7 PRACTICE DIRECTION APRIL 2010 COSTS 12. The costs of this application are reserved to the judge hearing the application on the return date. VARIATION OR DISCHARGE OF THIS ORDER 13. Anyone served with or notified of this order may apply to the court at any time to vary or discharge this order (or so much of it as affects that person), but they must first inform the Applicant’s solicitors. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Applicant’s solicitors in advance. INTERPRETATION OF THIS ORDER 14. A Respondent who is an individual who is ordered not to do something must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement. 15. A Respondent which is not an individual which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way. PARTIES OTHER THAN THE APPLICANT AND RESPONDENT 16. Effect of this order It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned, fined or have their assets seized. 17. Set off by banks This injunction does not prevent any bank from exercising any right of set off it may have in respect of any facility which it gave to the respondent before it was notified of this order. 18. Withdrawals by the Respondent No bank need enquire as to the application or proposed application of any money withdrawn by the Respondent if the withdrawal appears to be permitted by this order. [For worldwide injunction] 19. Persons outside England and Wales (1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court. (2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court – (a) the Respondent or his officer or agent appointed by power of attorney; (b) any person who – (i) is subject to the jurisdiction of this court; (ii) has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and (iii) is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and CIVIL PROCEDURE RULES Part 25A page 10 INTERIM INJUNCTIONS Practice direction APRIL 2010 (c) anyother person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state. [For worldwide injunction] 20. Assets located outside England and Wales Nothing in this order shall, in respect of assets located outside England and Wales, prevent any third party from complying with – (1) what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract between itself and the Respondent; and (2) any orders of the courts of that country or state, provided that reasonable notice of any application for such an order is given to the Applicant’s solicitors. COMMUNICATIONS WITH THE COURT All communications to the court about this order should be sent to – [Insert the address and telephone number of the appropriate Court Office] If the order is made at the Royal Courts of Justice, communications should be addressed as follows – Where the order is made in the Chancery Division Room TM 5.07, Royal Courts of Justice, Strand, London WC2A 2LL quoting the case number. The telephone number is 020 7947 6322. Where the order is made in the Queen’s Bench Division Room WG08, Royal Courts of Justice, Strand, London WC2A 2LL quoting the case number. The telephone number is 020 7947 6010. Where the order is made in the Commercial Court Room EB09, Royal Courts of Justice, Strand, London WC2A 2LL quoting the case number. The telephone number is 0207 947 6826. The offices are open between 10 a.m. and 4.30 p.m. Monday to Friday. SCHEDULE A AFFIDAVITS The Applicant relied on the following affidavits– [name] [number of affidavit] [date sworn] [filed on behalf of] (1) (2) SCHEDULE B UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) If the court later finds that this order has caused loss to the Respondent, and decides that the Respondent should be compensated for that loss, the Applicant will comply with any order the court may make. CIVIL PROCEDURE RULES INTERIM INJUNCTIONS Part 25A page 11 PRACTICE DIRECTION APRIL 2010 [(2) The Applicant will – (a) on or before [date] cause a written guarantee in the sum of £ to be issued from a bank with a place of business within England or Wales, in respect of any order the court may make pursuant to paragraph (1) above; and (b) immediately upon issue of the guarantee, cause a copy of it to be served on the Respondent.] (3) As soon as practicable the Applicant will issue and serve a claim form [in the form of the draft produced to the court] [claiming the appropriate relief]. (4) The Applicant will [swear and file an affidavit] [cause an affidavit to be sworn and filed] [substantially in the terms of the draft affidavit produced to the court] [confirming the substance of what was said to the court by the Applicant’s counsel/solicitors]. (5) The Applicant will serve upon the Respondent [together with this order] [as soon as practicable] – (i) copies of the affidavits and exhibits containing the evidence relied upon by the Applicant, and any other documents provided to the court on the making of the application; (ii) the claim form; and (iii) an application notice for continuation of the order. [(6) Anyone notified of this order will be given a copy of it by the Applicant’s legal representatives.] (7) The Applicant will pay the reasonable costs of anyone other than the Respondent which have been incurred as a result of this order including the costs of finding out whether that person holds any of the Respondent’s assets and if the court later finds that this order has caused such person loss, and decides that such person should be compensated for that loss, the Applicant will comply with any order the court may make. (8) If this order ceases to have effect (for example, if the Respondent provides security or the Applicant does not provide a bank guarantee as provided for above) the Applicant will immediately take all reasonable steps to inform in writing anyone to whom he has given notice of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. [(9) The Applicant will not without the permission of the court use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in England and Wales or in any other jurisdiction, other than this claim.] [(10) The Applicant will not without the permission of the court seek to enforce this order in any country outside England and Wales [or seek an order of a similar nature including orders conferring a charge or other security against the Respondent or the Respondent’s assets].] NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES The Applicant’s legal representatives are – [Name, address, reference, fax and telephone numbers both in and out of office hours and e-mail] CIVIL PROCEDURE RULES Part 25A page 12 INTERIM INJUNCTIONS Practice direction APRIL 2010 9. Before the Respondent allows anybody onto the premises to carry out this order, he is entitled to have the Supervising Solicitor explain to him what it means in everyday language. 10. The Respondent is entitled to seek legal advice and to ask the court to vary or discharge this order. Whilst doing so, he may ask the Supervising Solicitor to delay starting the search for up to 2 hours or such other longer period as the Supervising Solicitor may permit. However, the Respondent must – (a) comply with the terms of paragraph 27 below; (b) not disturb or remove any listed items; and (c) permit the Supervising Solicitor to enter, but not start to search. 11. (1) Before permitting entry to the premises by any person other than the Supervising Solicitor, the Respondent may, for a short time (not to exceed two hours, unless the Supervising Solicitor agrees to a longer period) – (a) gather together any documents he believes may be incriminating or privileged; and (b) hand them to the Supervising Solicitor for him to assess whether they are incriminating or privileged as claimed. (2) If the Supervising Solicitor decides that the Respondent is entitled to withhold production of any of the documents on the ground that they are privileged or incriminating, he will exclude them from the search, record them in a list for inclusion in his report and return them to the Respondent. (3) If the Supervising Solicitor believes that the Respondent may be entitled to withhold production of the whole or any part of a document on the ground that it or part of it may be privileged or incriminating, or if the Respondent claims to be entitled to withhold production on those grounds, the Supervising Solicitor will exclude it from the search and retain it in his possession pending further order of the court. 12. If the Respondent wishes to take legal advice and gather documents as permitted, he must first inform the Supervising Solicitor and keep him informed of the steps being taken. 13. No item may be removed from the premises until a list of the items to be removed has been prepared, and a copy of the list has been supplied to the Respondent, and he has been given a reasonable opportunity to check the list. 14. The premises must not be searched, and items must not be removed from them, except in the presence of the Respondent. 15. If the Supervising Solicitor is satisfied that full compliance with paragraphs 13 or 14 is not practicable, he may permit the search to proceed and items to be removed without fully complying with them. DELIVERY UP OF ARTICLES/DOCUMENTS 16. The Respondent must immediately hand over to the Applicant’s solicitors any of the listed items, which are in his possession or under his control, save for any computer or hard disk integral to any computer. Any items the subject of a dispute as to whether they are listed items must immediately be handed over to the Supervising Solicitor for safe keeping pending resolution of the dispute or further order of the court. 17. The Respondent must immediately give the search party effective access to the computers on the premises, with all necessary passwords, to enable the computers to be searched. If they CIVIL PROCEDURE RULES INTERIM INJUNCTIONS Part 25A page 15 PRACTICE DIRECTION APRIL 2010 contain any listed items the Respondent must cause the listed items to be displayed so that they can be read and copied1. The Respondent must provide the Applicant’s Solicitors with copies of all listed items contained in the computers. All reasonable steps shall be taken by the Applicant and the Applicant’s solicitors to ensure that no damage is done to any computer or data. The Applicant and his representatives may not themselves search the Respondent’s computers unless they have sufficient expertise to do so without damaging the Respondent’s system. PROVISION OF INFORMATION 18. The Respondent must immediately inform the Applicant’s Solicitors (in the presence of the Supervising Solicitor) so far as he is aware – (a) where all the listed items are; (b) the name and address of everyone who has supplied him, or offered to supply him, with listed items; (c) the name and address of everyone to whom he has supplied, or offered to supply, listed items; and (d) full details of the dates and quantities of every such supply and offer. 19. Within [ ] working days after being served with this order the Respondent must swear and serve an affidavit setting out the above information2. PROHIBITED ACTS 20. Except for the purpose of obtaining legal advice, the Respondent must not directly or indirectly inform anyone of these proceedings or of the contents of this order, or warn anyone that proceedings have been or may be brought against him by the Applicant until 4.30 p.m. on the return date or further order of the court. 21. Until 4.30 p.m. on the return date the Respondent must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed items otherwise than in accordance with the terms of this order. 22. [Insert any negative injunctions.] 23. [Insert any further order] COSTS 24. The costs of this application are reserved to the judge hearing the application on the return date. 1 If it is envisaged that the Respondent’s computers are to be imaged (i.e. the hard drives are to be copied wholesale, thereby reproducing listed items and other items indiscriminately), special provision needs to be made and independent computer specialists need to be appointed, who should be required to give undertakings to the court. 2 The period should ordinarily be longer than the period in paragraph (2) of Schedule D, if any of the information is likely to be included in listed items taken away of which the Respondent does not have copies. CIVIL PROCEDURE RULES Part 25A page 16 INTERIM INJUNCTIONS Practice direction APRIL 2010 RESTRICTIONS ON SERVICE 25. This order may only be served between [ ] a.m./p.m. and [ ] a.m./p.m. [and on a weekday]1. 26. This order must be served by the Supervising Solicitor, and paragraph 6 of the order must be carried out in his presence and under his supervision. VARIATION AND DISCHARGE OF THIS ORDER 27. Anyone served with or notified of this order may apply to the court at any time to vary or discharge this order (or so much of it as affects that person), but they must first inform the Applicant’s solicitors. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Applicant’s solicitors in advance. INTERPRETATION OF THIS ORDER 28. Any requirement that something shall be done to or in the presence of the Respondent means – (a) if there is more than one Respondent, to or in the presence of any one of them; and (b) if a Respondent is not an individual, to or in the presence of a director, officer, partner or responsible employee. 29. A Respondent who is an individual who is ordered not to do something must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement. 30. A Respondent which is not an individual which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way. COMMUNICATIONS WITH THE COURT All communications to the court about this order should be sent to – [Insert the address and telephone number of the appropriate Court Office] If the order is made at the Royal Courts of Justice, communications should be addressed as follows – Where the order is made in the Chancery Division Room TM 5.07, Royal Courts of Justice, Strand, London WC2A 2LL quoting the case number. The telephone number is 020 7947 6322. Where the order is made in the Queen’s Bench Division Room WG08, Royal Courts of Justice, Strand, London WC2A 2LL quoting the case number. The telephone number is 020 7947 6010. Where the order is made in the Commercial Court Room EB09, Royal Courts of Justice, Strand, London WC2A 2LL quoting the case number. The telephone number is 0207 947 6826. The offices are open between 10 a.m. and 4.30 p.m. Monday to Friday. 1 Normally, the order should be served in the morning (not before 9.30 a.m.) and on a weekday to enable the Respondent more readily to obtain legal advice. CIVIL PROCEDURE RULES INTERIM INJUNCTIONS Part 25A page 17 PRACTICE DIRECTION APRIL 2010