What is an Interim Interdict?
An interdict, the equivalent of an injunction in England and Wales, is a court order granted after full consideration, which prevents a wrong or an anticipated wrong. But what happens when you need an immediate order and can't wait till the conclusion of a court action? That's where interim interdicts come in.
An interim interdict is a temporary order, stopping a person or company or organisation from taking certain action or actions. Once obtained, the interim interdict will remain in place until it is recalled by the court either during or at the end of the court action. Depending on the outcome of the case, it may be replaced with a permanent interdict.
Interim interdicts can be particularly important to businesses where serious damage is likely to be suffered whilst awaiting the final judgement from the court. For a recent example of a case in which an interim interdict was successfully sought, and granted, read our blog on the action brought in the Court of Session by William Grant & Sons against Lidl, in which an interim interdict was granted, prohibiting Lidl from selling their own brand gin throughout the UK, in bottles which the pursuer argued infringed their trademark. Rejecting an appeal, the court confirmed that an interim interdict granted in Scotland could provide UK-wide protection.
How do I get an interim interdict?
An interim interdict can be sought in proceedings either in the Court of Session or Sheriff Court. It can be applied for at any time before the final judgment, even before service of the writ or summons initiating the action.
The interim interdict must be clear and precise, so that all parties understand exactly what is being sought to be prevented and must be no wider than necessary to prevent the anticipated wrong. It can only be used to stop a future act or acts currently being performed and cannot be used to force someone 'to act or do' something. In Scotland, unlike in England, where a party is looking to compel someone to carry out a positive act or performance, they can seek an order of interim specific implement. For more information on when an interim specific implement should be sought as oppose to an interim interdict, see our previous blog on how a landlord can force a tenant to stay open.
When deciding whether or not to use its discretion to grant an interim interdict, the court will consider the following two stage legal test:
1. Is there a prima facie case
The pursuer must show that they have a prima facie case (i.e. one which has a proper legal foundation and reasonable prospects of success).
2. Balance of convenience
The pursuer must also show that the inconvenience to them of not obtaining the interim interdict outweighs the inconvenience to the defender in having the interim interdict granted against them. This will involve the weighing up of several factors, including, whether the recognised 'wrong' is capable of remedy through monetary damages being awarded, and the financial effect of the interim interdict on each of the parties.
How do I protect myself against an interim interdict?
As previously noted, an interim interdict can be obtained before a court action has even been served, without any advance notice to the defender. However, this situation can be avoided where a caveat has been lodged with the relevant court. A caveat acts as an early warning system, requiring the court to notify the solicitor representing the defender that an application for an interim interdict has been made and give them the chance to alert their client and attend the hearing which will determine whether the interim interdict should be granted. For more information on what caveats are and how Brodies can help, see our recent blog.
If you have any questions about interim interdicts or caveats, please do not hesitate to get in touch.