Interim injunctions in e-commerce and how to react

An online shop without appealing photos and item descriptions is unimaginable these days. They’re a major part of the e-commerce battle for the best market position – which leads to some providers focusing too heavily on their competition. This can quickly lead to photo theft or other types of legal violations. To recognise this in time, you should regularly take a look at the competition and what they’re up to. Legal violations on the internet have been around for long enough to work their way into law, so if you find any, you can issue an out-of-court warning. If that’s not successful, you can quickly request the interim injunction. But what exactly is an interim injunction, and which criteria does your request need to fulfill to obtain one? If the roles are reversed and you’re on the receiving end of an interim injunction, how should you react?

An interim injunction, also referred to as a preliminary or interlocutory injunction, is a provisional form of legal protection that takes place before any actual trial proceedings. This means that you don’t have to wait for a lengthy court trial to be able to make your legal claim. In 1975, the House of Lords established a three-pronged test that claims must pass before an interim injunction will be granted:

• Is there a serious question to be tried?
• Balance of convenience
• Case for the status quo

In e-commerce in particular, the interim injunction procedure is an effective means of rapidly counteracting possible infringements. As soon as you discover a violation, you should act as quickly as possible. Doing so will also help you to fulfill the main criteria to prove the necessity of your injunction, and as a result will make your case stronger. Be careful, though, to make sure that you do indeed have a case – if the later trial rules that the injunction was unnecessary, the party bringing the suit will be liable for monetary damages.

In the U.K., interim injunctions are permitted under Civil Procedure Rules (CPR) 23 and CPR 25. When applying for an interim injunction, it is assumed that you will first have contacted the respondent outside of the High Court, unless the circumstances are very urgent or you have good reason not to. As a general requirement, though, the claimant cannot object to the respondent knowing about their application. The application must be a standalone document containing very detailed information about the nature of the injunction, and specifically phrased to outline exactly what conduct is being prohibited, the reasons for its issuance, and any other necessary information. The duration of the injunction must also be clearly stated. This is usually until the date when the case is considered by the Court. The application notice submitted to the High Court is Form N244 and must be filled out in full.

By nature, an injunction is merely a temporary measure set in place to save time or spare a claim from harm before a trial can take place. Any claim for injunctive relief must be supported by full evidence, including disclosure of all facts – not only those directly relevant to or in support of the claimant’s case. Following the duty of disclosure, if an interim injunction is granted then the claimant must agree to notify the defendant as soon as possible, if they have not already done so. “Without notice” applications are only accepted in rare circumstances, when good reason can be proven. Interim injunctions generally equate to a cease and desist order, which prevents further damage to the claimant. Any further claims, such as damages claims, will be decided in the subsequent main court proceedings.

As mentioned earlier, there are three basic grounds for the issuance of an interim injunction. The claimant has to satisfy all three criteria before an injunction will be granted, called the American Cyanamid Test: that it is a serious question to be tried, the balance of convenience, and the status quo.

1. Serious question to be tried: Based on the merits of the case, it is likely that it will go on to win at trial. This means that when applying for an injunction, you should be prepared with all required evidence to prove your claim that the activity you’re looking to block would in fact go against the law or cause unlawful harm to your business. While this does not require you to prove that you will win the case, the Court must be satisfied that the question behind the injunction is not frivolous.
   
   
2. Balance of convenience: The convenience balance weights the possible harm to the claimant if the injunction is not issued versus the possible harm to the defendant if the injunction is issued. This takes into consideration the relative strength of the parties’ cases, and the extent of the supposed infringement. It also considers the cross-undertaking in damages and the claimant’s ability to compensate the defendant if the injunction is found to be wrongful, as well as the defendant’s ability to pay damages if it’s not. These harms will be balanced and ruled upon by a judge when considering the issuance of an interim injunction.
   
   
3. Status quo: A difficult requirement to describe, the consideration of the status quo is different for each case and will be considered differently depending on the available facts. For example, it could be found that some detail present in the case is in violation of the status quo and therefore subject to immediate injunction. However, the endeavour of the Court is usually to maintain.

How can the Court respond to your request?

When an application for injunction is submitted, the decision is usually made in court during a hearing with all parties present. Which arguments the Court is willing to hear depends on the type of application. With “ex parte” applications, the Court will only hear arguments from the party seeking the injunction. Cases with “inter partes” applications allow both parties to have their arguments heard. Some applications can also be heard as a combination of the two - for instance “ex parte on notice”, where the defending party can attend the hearing but cannot present a full argument. Most courts will consider cases based on minimal comprehension of facts and witnesses, though judges can call for a more thorough hearing if they feel that they have reason to doubt your claims. It’s important to remember that at all times, the Court retains ultimate power over injunctions, and can change them or set them aside at their discretion.

The term “forum shopping” refers to the choice of court, judge, or jurisdiction in favor of the plaintiff. Generally, the case is brought in the district where the infringement was committed. But with e-commerce, it means that violations can be committed virtually anywhere within the reach of the internet. In theory, they fall under every jurisdiction – although this obviously is not a practical application. As a result, the claimant can apply for an interim injunction in a number of different courts and therefore choose one that will help them gain an advantage over the defendant. For example, some courts require less burden of proof or have more lenient precedent with certain types of injunction cases. Past judgments on similar cases can give the claimant an indication of their chances of success, as well as considerably influence the court’s decision. It’s common practice for lawyers to file an application with several courts at the same time in order to achieve the best possible chances of winning. E-commerce is already regulated in the UK and EU by the Electronic Commerce (EC Directive) Regulations of 2002, which helps clarify how jurisdiction is divided and handled online.

Let’s turn the tables: You’ve received an interim injunction and are charged with a violation for your e-commerce. You could be faced with considerable losses. How should you react in this situation? What legal steps must you take to defend yourself in the event of an unlawful injunction? Are there any ways to have an injunction annulled?

You are required to comply with the interim injunction as soon as it has been served to you. Whether or not the applicant’s claims are justified in your opinion is not yet decided at this phase. The expedited procedure is used to obtain a preliminary court order usually without oral proceedings. However, if you’re concerned about a restraining order, you can rest slightly easier with the guarantee that any injunction found to be wrongly issued will be compensated by monetary damages from the claimant.

If you believe that the injunction filed against you is unjustified, it is now your responsibility to gather as much evidence as you can to prove in court that the issuance was unnecessary. It may also be helpful to review the precedent of the court where you will be making your argument. If the injunction was granted without notice, then you as the respondent will be allowed to present your arguments to the Court - though it’s not considered a formal appeal. If the hearing was on notice, you can make a request to the High Court to be heard by the Court of Appeal. If the High Court, denies this request, you can appeal to the Court of Appeal itself.

If the main proceedings are initiated, the case will be examined in the context of a civil proceeding. If the applicant decides against a court case or if the circumstances have changed, you can apply to suspend the injunction. If the interim injunction proves to be unjustified and has been issued unnecessarily, you have the right to monetary compensation. The claimant will be required to reimburse you for all costs incurred as result of the prohibition, including court costs. After the judgement, there is still an opportunity to appeal – either through the High Court or the Court of Appeals itself.

Please note the legal disclaimer relating to this article.