Too early for kick-off: interim injunctions
Last weekend saw the start of the 2019/20 Premier League season. Like most situations, preparation is key. Failure to adequately prepare could not only mean the loss of a match at the start of the season but could have more long-term consequences.
If you are about to kick-start a claim or application for interim relief, it is critical to ensure you have done all the leg-work in assessing the merits of your case (including a full interrogation of the background, considering the relevant law, adopting the right strategies and understanding your opponent). Failure to do so may have serious consequences for you or your business, including cost penalties imposed by the court. This is a lesson recently learnt by one Premiership team.
What is an injunction?
An injunction is an order of the court that requires a party either to:
- do a specified act (known as a “mandatory injunction”; or
- refrain from doing a specified act (a “prohibitory injunction”).
An application for an injunction can be made before (where the matter is urgent) or after court proceedings have begun. Where the application is urgent, or where giving notice may defeat the purpose of the application (e.g. assets being dissipated), the application can be made without giving notice of it to the party being injuncted.
The recent decision in the case of WH Holding Ltd & West Ham United FC v E20 Stadium LLP highlights the risks of prematurely issuing applications for injunctive relief. The court made an adverse costs order against the Premier League club despite it claiming that its application had been successful.
The former Olympic Stadium in Stratford is home turf for West Ham pursuant to a commercial arrangement with E20 Stadium LLP (the body responsible for management of the stadium including providing stewarding and security).
Following crowd disturbances in a match against Burnley last Spring, the Football Association charged West Ham with misconduct for failing to ensure that its fans did not encroach onto the pitch area. In response to that charge and in view of its commercial arrangement with E20, West Ham sought information relating to the charges from E20. Whilst E20, through its lawyers, engaged with West Ham, it was not to the club’s satisfaction.
This resulted in an ultimatum to E20’s lawyers on a Friday afternoon threatening an application for injunctive relief the following Monday if satisfactory responses were not received within 3 hours. E20’s lawyers did not reply in that timeframe and the application was issued and heard on the Monday with only West Ham in attendance (i.e. without notice).
At a further hearing, the court approved a consent order requiring E20 to answer various questions to assist West Ham in responding to the charge.
Although an order was made against E20 ordering it to take action, when it came to the question of costs, the court held that the club should be responsible for E20’s costs of defending the application given its “trigger-happy” conduct. The court commented: “… whilst understandably anxious about the impending FA Charge, West Ham did jump the gun with an unfocussed application for injunctive relief which it was then forced to amend very substantially to adopt the process reasonably suggested by E20.”
Keep your eyes on the ball
It is widely recognised that circumstances which call for urgent injunctive relief are often time critical and high pressure. Despite the urgency, it remains essential to prepare thoroughly to ensure the application is successful, avoid adverse costs orders and prevent an own goal.
When you speak to a prospective defendant, it is key to ensure you are clear about: (i) what you are asking them to do, (ii) the consequences of failing to voluntarily comply, i.e. you will apply for an injunction and (iii) setting realistic deadlines for compliance as this will be high on the court’s agenda in determining whether to make an order.
Like the Premier League, having a supportive manager and team around you is essential to achieving your goals. Our Disputes team has an excellent track-record of applying for, and defending, fast-paced and complex applications for injunctive relief covering a variety of sectors and issues.
If you are threatened with an injunction or think you need to apply for one, please contact us without delay to discuss.