What is a mandatory injunction?
A mandatory injunction is a court order requiring a person or business to take a specific action in order to correct or prevent a legal wrong. Unlike a prohibitory injunction, which prevents conduct, a mandatory injunction compels the defendant to do something.
In commercial disputes, mandatory injunctions are typically used to reverse a wrongful act or require a party to fulfil a legal obligation. Examples include orders requiring the return of company property, the restoration of access to business systems or the removal of unlawful structures or materials.
Because mandatory injunctions require positive action rather than simply restraining conduct, courts in England & Wales apply a particularly careful approach before granting them.
When will the court grant a mandatory injunction?
The courts will only grant a mandatory injunction where the claimant can demonstrate that such an order is necessary to prevent injustice.
The starting point is the well-known principles established in American Cyanamid v Ethicon Ltd [1975] AC 396, which govern interim injunctions.
However, mandatory injunctions generally require a stronger case than prohibitory injunctions. Courts will usually expect the applicant to demonstrate a high degree of assurance that the claim will succeed at trial.
In practice, this means the court will look closely at the evidence supporting the claim and the consequences of requiring the defendant to take immediate action.
Where the court considers that the issue can safely be left until trial, it may decline to grant a mandatory injunction.
What types of situations lead to mandatory injunctions?
Mandatory injunctions most often arise where a party has already taken action that has caused harm and the court considers it necessary to reverse that conduct.
In commercial disputes, common examples include situations where
- a former employee has retained confidential documents,
- a director has wrongfully taken company assets, or
- a party has interfered with the operation of a business.
Mandatory injunctions may also be granted in property-related commercial disputes. For example, the court may require a party to remove structures that interfere with contractual or proprietary rights.
These orders are designed to restore the position that should have existed before the wrongful act occurred.
How are mandatory injunction applications made?
Applications for mandatory injunctions are usually made within existing court proceedings. However, where urgent relief is required, the court may consider the application at an early stage of the dispute.
The application is normally supported by detailed witness statements explaining the background to the dispute and the reasons why the injunction is necessary.
Because mandatory injunctions involve compelling action, courts often require clear evidence that the proposed order is practical and capable of being enforced.
In urgent cases, the court may hear the application on an interim basis pending a full trial.
Can mandatory injunctions be granted urgently?
In appropriate cases, mandatory injunctions can be granted urgently.
- Where immediate action is necessary to prevent serious harm, the court may grant an interim mandatory injunction before the dispute is fully resolved.
- However, courts are generally cautious about granting mandatory injunctions at an interim stage. Because such orders require the defendant to take immediate action, they may effectively determine the dispute before trial.
For this reason, courts usually require particularly strong evidence before granting urgent mandatory relief.
What happens if a mandatory injunction is not complied with?
Failure to comply with a mandatory injunction constitutes contempt of court.
The courts have significant powers to enforce compliance with injunction orders. These powers may include financial penalties, seizure of assets and, in the most serious cases, imprisonment.
Because of these consequences, mandatory injunctions must be taken extremely seriously. Businesses that are subject to such orders should seek legal advice immediately to ensure that the terms of the injunction are fully understood and complied with.
How mandatory injunctions arise in commercial litigation
Mandatory injunctions frequently arise in disputes involving directors, shareholders and former employees.
For example, the court may order a director to return company property or restore access to corporate records. In shareholder disputes, mandatory injunctions may require the reversal of actions taken in breach of company agreements.
In some cases, mandatory injunctions are also used to protect confidential information or intellectual property where documents or materials must be returned or destroyed.
Although they are granted less frequently than prohibitory injunctions, mandatory injunctions remain an important remedy in commercial litigation.
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