PT-2025-000379 - [2025] EWHC 2628 (Ch)

There was a substantial measure of agreement between the parties as to the legal principles to be applied on an application for an interim mandatory injunction. The test is that set out in American Cyanamid pursuant to which the applicant must establish that there is a serious issue to be tried; that damages would not be an adequate remedy for the applicant if the injunction were refused; and that the balance of convenience favours the grant of the interim injunction.

The principal difference between the parties concerned the relevance of the merits of the underlying proceedings and, in particular, whether or not the Court should not grant an injunction unless there is a “high degree of assurance” that, at trial, the applicant will establish the right on which it relies for the interim relief sought. Between them, the parties referred to a number of authorities in which that issue has been considered: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, Nottingham Building Society v Eurodynamics Systems [1993] FSR 468, National Commercial Bank of Jamaica Ltd v Olint Corp Ltd (Practice Note) [2009 1 WLR 1405 (PC), and O’Brien v TTT Moneycorp Ltd [2019] EWHC 1419 (Comm).

It seems to me that the principle to be derived from these authorities is that, while it is not necessary for the court to have a “high degree of assurance” in every case, the Court will generally wish to consider the merits of the applicant’s case as part of assessing where the balance of convenience lies. Given that the underlying principle is that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out at trial to have been “wrong”, the greater the degree of assurance which the Court has in the applicant’s case then the less the risk of injustice will be if a mandatory order is granted. Thus a high degree of assurance will often be a relevant factor in favour of the grant of a mandatory injunction. Equally, it will generally only be in cases where withholding the injunction would carry a significantly greater risk of injustice than granting it that the Court will proceed without the relevant high degree of assurance.

The Claimants also referred to a number of authorities which illustrated the jurisdiction of the Court to grant:

For their part, the Defendants sought to distinguish these cases as ones in which there was either a plain breach and no doubt as to what was required to be done to remedy that breach (such as Jeune) or where there was an admitted breach by the landlord and exceptional circumstances (such as Parker). They said that the circumstances of the present case were different.