Getting help from the court before judgment

Ensuring that the defendant’s assets are preserved to meet any eventual judgment against it can be a crucial part of the eventual enforcement process. English courts have the ability to make a freezing order which, although it does not give the claimant any security interest over the defendant’s assets (within England and Wales or also anywhere else in the world), does prevent the defendant disposing of those assets (up to a certain value and, in the case of a defendant company, the payment of employees and trade creditors will still be permitted). Applicants for a freezing order will usually have to give a cross-undertaking in damages, which means they undertake to compensate the defendant if it subsequently turns out that they were not really entitled to the freezing order.

There are various measures which the English court can take to help litigants obtain relevant information held by non-parties to the proceedings. These include: a non-party disclosure order; a witness summons (see Do witnesses have to give evidence at trial even if they don’t want to?); a Norwich Pharmacal order (where the non-party is involved or mixed up in wrongdoing (which has a wide definition to could include, for example, a breach of contract)) and a letter of request (as above).

English courts have the power to order a party to do a specific act (mandatory injunction) or to stop doing a specific act (prohibitory injunction). Both types of injunctions can be made before judgment. Judges have a wide discretion to order injunctions. Very broadly, applicants need to show that, without the injunction, they will suffer irremediable prejudice (and damages would not be an adequate remedy). It can be harder to obtain a mandatory injunction.

English law recognises a principle of open justice and so journalists and the general public are usually free to attend. As a result, it can be hard, but not impossible, to keep the hearings in the case private and confidential. In exceptional cases, you may be able to have a hearing heard in private or get an anonymity order to prevent disclosure of the identity of a person. However, even if you have a private hearing, a judgment will usually be public – even if it contains commercially sensitive information.

These materials are written and provided for general information purposes only. They are not intended and should not be used as a substitute for taking legal advice. Specific legal advice should be taken before acting on any of the topics covered.

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