Privacy, harassment and defamation
What is an injunction?
An injunction is a civil court order that prohibits a person from doing a specific act, and/or requires them to do something. In a media law context, injunctions are most often granted to prevent the publication of private, confidential, defamatory and/or inaccurate information. They are also granted to require the removal of online content. In recent years injunctions have also increasingly been granted to prevent harassment. If an injunction is disobeyed this can amount to contempt of court, which can result in the wrongdoer being imprisoned, fined or having their assets seized.
How can I apply for an injunction?
Injunctions are not granted lightly by the courts. They are draconian measures. Anyone seeking an injunction needs to:-
a. Have a good legal claim (for the misuse of private information, breach of confidence, breach of the General Data Protection Regulation (‘GDPR’)/Data Protection Act 2018, harassment, defamation and/or malicious falsehood).
b. Be able to persuade the court that an injunction is necessary to prevent further wrongdoing (and/or is required to remedy wrongdoing)
c. Be in a position to fund a claim (i.e. pay their lawyers) through to trial, with much of the cost frontloaded if an interim injunction is sought. Typically, £10-15,000 will be needed immediately.
d. Be sure that the defendant will be able to pay any costs order or accept that they may not recover their legal costs
What if I don’t want to sue for compensation and l just want an injunction?
Unfortunately, an injunction is not a “standalone remedy”. You still need to sue the defendant. However, the court can impose an interim injunction at the start of the case. Cases will often settle at this point (or default judgment can be obtained if the defendant does not engage in the proceedings), but this can never be assumed. The cost of taking a claim to trial can be considerable and if you lose or abandon a claim you will also normally be ordered to pay your opponent’s legal costs. Thus, seeking an injunction involves serious financial commitment and some financial risk. It is certainly not a course of action which should be taken on a whim or out of principle alone.
What is an interim injunction?
An interim injunction is a temporary injunction that (ordinarily) stays in force to trial (normally around a year after a claim has been issued). If the claim succeeds at trial the court can grant a permanent injunction. A permanent injunction cannot be granted unless/until the claim succeeds.
Interim injunctions for pure defamation claims are very rare as “the law of prior restraint” normally prohibits them where a respondent intends to defend a claim at trial. However, defamation claims will often overlap with other claims where interim injunctions are available.
What will the court consider in deciding whether to grant an interim injunction?
In all cases the court will need to be satisfied there is a good arguable claim and an injunction is necessary. In publication cases, the Court needs to be satisfied that an injunction would likely be granted following trial. In harassment cases, the Court determines where the “balance of convenience” lies: by weighing up the likely damage to the applicant if an injunction is not granted, as against the inconvenience to the applicant if it is. An injunction is a discretionary remedy; ultimately, it’s about persuading the judge.
Can I seek an urgent injunction?
Yes, depending on the circumstances. The Civil Procedure Rules normally requires three clear days’ notice to be given to the defendant. This is to allow them time to prepare their defence and instruct lawyers. However, if the matter is urgent an interim injunction can be sought on a ‘without notice’ or ‘ex parte’ basis, sometimes even outside normal working hours or at the weekend. This might be the case where publication or disclosure is imminent e.g. if something is going to be published in the Sunday papers. With an urgent injunction, there will always be a second hearing a week or so later (a ‘return date’) so the court can decide whether the interim injunction should stay in force after the respondent has had a chance to seek legal advice.
What is the cost of seeking an interim injunction?
The cost will depend on the factual and legal complexity of the case, the seniority of counsel instructed and whether the injunction is sought on an urgent basis or not. We require a minimum payment of £10,000 on client account before undertaking work on an interim injunction or £15,000 on an urgent interim injunction (which will require two hearings). Payments can be made by debit/credit card out of hours using our online payment facility.
How can Brett Wilson LLP help?
Media law is a specialist area of law. Our media law department exclusively undertakes this work and our solicitors are experienced in dealing with injunction applications. These applications require court papers and complex legal arguments to be prepared in short order. We will take your instructions and work with you to ensure your evidence is prepared effectively, to give you the best chance of obtaining the injunction.
Do you act for defendants?
Yes, we have extensive experience representing defendants facing injunction applications or who are the subject of injunctions. If you have been served with papers we strongly recommend that you contact us immediately – and normally prior to contacting the claimant’s solicitors. If time permits, keep your powder dry; don’t play lawyer.
Who do I contact?
We have specialist media law solicitors available at short notice (including during evenings and weekends) to deal with emergency injunction applications. If you are seeking an urgent injunction and are in a position to retain the firm please call 020 7183 8950 and ask to speak with the duty media law solicitor. Alternatively, please email firstname.lastname@example.org and leave your contact details so that one of our specialist solicitors can contact you.
Not all cases warrant an interim injunction or the costs/risks are prohibitive. There may be other options available to you: for example, we can seek to negotiate an out of court settlement by agreeing contractual undertakings.
In most instances we offer fixed fee consultations from £400 plus VAT to review papers, take instructions and advise you on options. These are extremely popular with clients who are unsure what, if any, legal action to take – as well as defendants facing an injunction application.