As you can see, the potential benefits to clients of properly obtaining, executing and (equally importantly) keeping these orders cannot be overstated. What are the potential risks in obtaining these types of injunctions? The primary risk in obtaining these sorts of injunctions is having your opponent’s client’s discharge the injunction in its entirety or substantially amend its scope. If the injunction is discharged, that may trigger the cross-undertaking in damages. This cross-undertaking has to be given by the client/applicant when obtaining all of the types of injunctions. Therefore, if the injunction has been made in error and damages have flowed to the respondents, the applicant will generally be liable for those losses – and a review of the case law in this area will show that some of those losses can be extremely large indeed. It also should be said that, even if the losses are not particularly high and the injunction is substantively discharged, the costs of that discharge will generally be paid by the applicant. So there is clearly a significant risk and, rightly, a very high bar in obtaining these injunctions. What are the common pitfalls resulting in these injunctions being discharged? The most common reason for discharge of an injunction ultimately relates to the obligation of full and frank disclosure. This is an extremely high burden placed on the applicant which essentially requires that applicant to explain to the judge all of the good and bad parts of that client’s case, and all the good and bad parts (as far as they can know them) of the respondent’s case. These applications are nearly always made ex-parte, or without notice, to the respondent and therefore by definition without the respondent in the Court while the application is being made. Hence the obligation of full and frank disclosure and why the Court requires that rule to be complied with in a very meaningful way. If it is not, the Court could make an order that it would otherwise not have made had it been provided with the full information reasonably available. Why is communication with clients crucial to ensure that injunctions are not thrown out? The obligation of full and frank disclosure means that the practitioner is in the unusual position of having to undertake what are sometimes extremely challenging and often uncomfortable conversations with the client virtually at the outset of the matter 48 LAWYERMONTHLYDECEMBER 2022
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