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In the realm of legal remedies, injunctions stand as a formidable tool, capable of restraining harmful actions or mandating specific conduct. They come in various forms—interim or permanent, prohibitory or mandatory—yet their essence remains consistent: to preserve justice. However, when the urgency of a situation demands immediate action, ex-parte injunction applications emerge as a legal recourse, allowing one party to seek relief without the presence of the opposing party. Yet, this expedited route comes with a crucial caveat: the duty of full disclosure.
Ex-parte injunctions, where one party petitions the court without notifying the other party, are reserved for circumstances of extreme urgency or the necessity of secrecy. This unique legal maneuver grants the applicant relief swiftly before the opposing party can respond. However, it also places a weighty responsibility on the applicant to provide the court with all relevant information, even if it may benefit the opposing side.
Types of situations where without notice injunctions are commonly sought include:
- Breaches of Non-Compete Clauses;
- Dissipation of asset of an estate;
- Trespass to land;
- Preventing nuisance;
- Child protection orders;
- Stopping the publication of defamatory statement;
- Protecting intellectual property; or
- Enforcing confidentiality agreements or NDA’s;
At the heart of ex-parte injunction applications lies the duty of full disclosure. This duty demands that the applicant present all material facts to the court, ensuring an informed decision-making process. Failure to disclose pertinent information can result in the dismissal of the application.
Despite the clear ethical imperative of full disclosure, applicants may be tempted to withhold information, either out of fear or strategic calculation. However, such actions often prove counterproductive, jeopardizing the credibility of the application and undermining the trust of the court.
Given the complexities involved, judges often hesitate to grant injunctions without notice. In the notable case of National Commercial Bank v Olint [2009] 1 WLR 1405 Lord Hoffman expressed the view that a judge should refrain from considering such applications unless giving notice would allow the defendant to thwart the injunction’s purpose. The Court emphasized that even a simple telephone call would have been preferable to not giving any notice at all.
The duty of full disclosure must be balanced with the need for swift action in urgent cases. While time may be of the essence, honesty and transparency remain paramount. Thorough investigation and comprehensive disclosure not only fulfill ethical obligations but also strengthen the credibility of the application.
For legal practitioners navigating ex-parte injunction applications, adherence to the duty of full disclosure is essential. Thoroughly investigating the issues, providing a detailed account of events, and maintaining honesty throughout the process are indispensable strategies.
By laying all cards on the table, applicants not only uphold ethical standards but also bolster the integrity of their case. While the urgency of the situation may be pressing, the importance of transparency cannot be overstated. In the delicate balance between expediency and integrity, the path of honesty ultimately leads to the most favorable outcomes.
Immanuel P.O. Williams is an Associate at Glenn D. Godfrey & Co. LLP. You can reach him at immanuel@godfreylaw.net or visit godfreylaw.net. This article is for general information and not legal advice.