Reconsideration of first principles: Interdict applications in Scotland

Sarah McIvor

The Inner House recently set out that the first and most important consideration in determining whether to grant interim interdict (injunction) is whether the party seeking interdict has made a prima facie case of entitlement to that remedy.

(Co-authored with Lorraine Walkinshaw)

Interim Interdict

The criteria for the grant of interim interdict is set down in Scottish Power Generation Ltd v British Energy Generation Ltd, 2002 S.C. 517. When making an order for interim interdict, Scottish Courts must consider:

  • the legal basis and precise extent of the right asserted;
  • whether there is a prima facie case that an obligation exists and that there is a continuing or threatened breach of that obligation which the order will address; and
  • the balance of convenience, bearing in mind the harm to either side and the relative strength of their cases.

In Sundolitt Limited v Paul Addison, the Inner House outlined the primary importance of establishing a prima facie case.

Sundolitt Limited v Paul Addison

The party seeking the interdict was a company specialising in the provision of polystyrene packaging products. The defender was a former employee of the company, having worked as a sales manager in Scotland and Northern England. Having signed a Restrictive Covenant Agreement (RCA) at the start of his contract, the defender left to become a self-employed sales rep in the same industry. The pursuer believed that, in doing so, the defender was in breach of the RCA and raised proceedings seeking interdict, as well as seeking interim interdict and damages.

The Court of first instance granted interim interdict. The defender was prevented from, in line with the terms of the RCA, (i) engaging or being interested in the supply of certain plastic products to defined prospective or restricted clients, (ii) canvassing or soliciting clients he had material dealings with in the course of his employment and (iii) using, divulging or communicating trade secrets and confidential information.

The defender moved to recall the interim interdict orders. The recall motion was granted in relation to paragraphs (i) and (ii) of the orders. The Judge hearing the motion for recall opined that the interim interdict orders were too wide in scope and duration, therefore, they were likely to be unenforceable and not reasonably necessary to protect the pursuer’s legitimate interests. The weakness of the pursuer’s prima facie case had a bearing on how the judge approached the balance of convenience argument.

The pursuer appealed to The Inner House, in which it was held that the first consideration of the Court must be whether the party seeking interim interdict has made a prima facie case of entitlement to the remedy. Consideration of the prima facie case will be based upon the pleadings at the hearing and must be sufficiently founded in law and asserted fact. It is, however, subject to an examination of relevancy, and, while the Court is not obliged to make a finding on relevancy, the strength of the prima facie case is important in the consideration of the balance of convenience.

Only once a party has established that they have a prima facie case, will the Court consider the balance of convenience. In assessing this, the Court will consider the strength of the prima facie case, as well as assessing the advantages and disadvantages for parties should the order be granted. 

Why is this of importance?

This case highlights that whether or not the party seeking interim interdict has a prima facie case, is the primary consideration of the Court when deciding whether to grant interim interdict. Pleadings, both oral and written, should focus strongly on establishing that an obligation exists and that there is a continuing or threatened breach of that obligation, which the order will address. The Inner House used the opportunity provided by Sundolitt Limited v Paul Addison to outline that only once a prima facie case is established, will the other elements of the legal test be considered and, should they be met, interim interdict granted.

Sundolitt Limited v Paul Addison [2017] CSIH 15

Post By Sarah McIvor (1 Posts)

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