Unusually, in AAH Pharmaceuticals Ltd v Mercury Pharmaceuticals Ltd and another, the High Court has granted an ex parte mandatory interim injunction. The courts are often reluctant to make such an order, because where the defendant is ordered to take a positive step at an interim stage, there is a greater risk of injustice to him if it later turns out that the injunction was wrongly granted. In this case, however, after considering the principles established in American Cyanamid Co v Ethicom Ltd  AC 396 and those specifically applicable to the grant of mandatory interim injunctions laid down in Nottingham Building Society v Eurodynamics Systems plc  FSR 468, the court was satisfied that there was a lower risk of injustice to the defendant in granting the injunction than in refusing it.
The court’s reasoning was three-fold:
- The claimant had established a serious question to be tried and the judge had a “high degree of assurance” that the claimant would be able to establish its right at trial.
- Damages would not be an adequate remedy for the claimant due to the risk of it suffering reputational damage. The judge observed that such damage could not be adequately compensated as it was “very, very difficult to assess“.
- The claimant’s undertaking in damages was sufficient to protect the defendants’ position until the substantive inter partes hearing.
Although the application was ex parte, the claimant gave the defendants notice of the application at 7.17pm the evening before the hearing and they were represented. The judge was unimpressed with this and noted that it was a case in which there would have been no risk to the claimant in giving more notice to the defendants.
AAH Pharmaceuticals Ltd v Mercury Pharmaceuticals Ltd and another  EWHC 541 (Comm). The judgment in this case is available to PLC subscribers here.