How to defend an injunction at a possession or property hearing

An injunction in a property context is a court order requiring someone to do something (a mandatory injunction) or to stop doing something (a prohibitory injunction). For landlords, neighbours and property owners served with an injunction or an application for one, the response window is usually short and the consequences of getting it wrong are significant. This guide explains how property injunctions work, the grounds on which they can be defended and what to bring to a hearing.

When are property injunctions used?

Common situations include:

• Injunctions restraining trespass to land
• Injunctions to stop ongoing nuisance from a neighbouring property
• Injunctions to restrain a breach of restrictive covenant
• Injunctions to prevent unauthorised works or alterations
• Anti-social behaviour injunctions in housing disputes
• Injunctions restraining the disposal of property pending proceedings
• Injunctions in landlord and tenant disputes (for example, to require quiet enjoyment)

Without notice and on notice applications

Injunctions can be applied for:

Without notice

The applicant goes to court without telling the respondent. This is reserved for cases where there is genuine urgency or where giving notice would defeat the purpose. The court will only grant an interim order, usually for a few days, until a hearing on notice can be held.

On notice

The respondent is served with the application and has the opportunity to attend the hearing. This is the standard route for most property injunction applications.

The American Cyanamid test

For interim injunctions, the court applies the test from American Cyanamid v Ethicon Ltd. The court considers:

• Whether there is a serious question to be tried
• Whether damages would be an adequate remedy for either side
• The balance of convenience between granting and refusing the injunction
• The status quo

For final injunctions (decided at trial), the court considers whether the substantive cause of action has been established and whether injunctive relief is the appropriate remedy.

The cross-undertaking in damages

When the court grants an interim injunction, the applicant usually has to give a cross-undertaking in damages. This means that if the injunction turns out to have been wrongly granted, the applicant will compensate the respondent for the loss caused.

A weak applicant who cannot meet the cross-undertaking sometimes finds the court unwilling to grant the injunction, even where the underlying case has some merit.

Defending an injunction application

Read the application carefully

The application notice and supporting witness statement set out what is being claimed. Understand exactly what order is sought and the alleged factual basis.

Identify the cause of action

The applicant must be relying on a recognised legal cause of action. Common ones in property disputes include trespass, nuisance, breach of covenant and breach of statutory duty. If there is no clear cause of action, the injunction may not be granted.

Challenge the factual basis

If the applicant's account of the facts is wrong, set out the correct position in a witness statement. Provide documentary evidence where available.

Address the balance of convenience

Even where there is a serious question to be tried, the court can refuse the injunction if damages would adequately compensate the applicant or if the balance of convenience favours the respondent.

Address the cross-undertaking

If you can show that the applicant may not be able to meet a cross-undertaking, this may affect the court's willingness to grant the injunction.

Common grounds for defence

No legal right

The applicant does not have the legal right they claim. For example, they cannot enforce a restrictive covenant because they do not benefit from it.

No breach

The conduct complained of does not in fact breach any legal duty owed to the applicant.

Consent or licence

The applicant consented or licensed the activity complained of.

Acquiescence and delay

The applicant has known of the activity for a long time and only now complains. Substantial delay can be a complete defence in some cases.

Adequate damages

Damages would be an adequate remedy. Where money can fully compensate for the harm, an injunction is usually refused.

Hardship to respondent

The injunction would cause disproportionate hardship to the respondent compared with the benefit to the applicant.

Public interest

The activity has a public benefit that outweighs the private interest of the applicant.

What to bring to the hearing

Witness statement

Your witness statement is the central document. It must set out:

• Your version of the relevant events
• The basis for any defence
• Evidence of the harm an injunction would cause you
• The position on damages as an adequate remedy

Documentary evidence

Title deeds, plans, photographs, correspondence and any other documents relevant to the dispute.

Expert evidence where appropriate

For technical issues (boundary disputes, building works, noise levels), expert evidence may be needed. For an interim hearing this may not be possible, but it can be flagged for the trial.

The bundle

A clean bundle containing all the documents the court will need. For an opposed interim injunction, an updated bundle is usually appropriate.

Skeleton argument

For anything more than a routine hearing, a skeleton argument setting out the legal basis for the defence is essential.

The timeline of an opposed injunction

A typical sequence:

• Applicant applies on notice for interim injunction
• Respondent files witness statement opposing
• Hearing of the interim application (usually 30 minutes to 2 hours)
• Court grants, refuses or grants on modified terms
• If the case continues to trial, full procedure with disclosure, witness statements and trial
• Court determines the final position at trial

Many cases settle after the interim hearing because the parties have a clearer view of how the court approaches the issues.

If the injunction is granted

If an interim injunction is granted, you must comply with it. Breach of an injunction is contempt of court and can lead to a fine, imprisonment or sequestration of assets.

If you think the injunction is wrong, the right course is to appeal or apply to discharge it, not to ignore it.

Applying to discharge an injunction

If circumstances change, or if new evidence becomes available, you can apply to discharge the injunction. The application is made to the same court that granted the original order.

Grounds for discharge include:

• Material non-disclosure by the applicant at the original hearing
• Significant change of circumstances
• New evidence undermining the applicant's case
• The applicant has not pursued the substantive proceedings

Costs in injunction cases

The general rule that costs follow the event applies to injunction proceedings. The unsuccessful party usually pays the successful party's costs. However:

• For interim injunctions, costs are sometimes reserved to the trial
• Where the applicant fails to disclose material facts, they may face an adverse costs order even if successful overall
• Where the respondent has caused the dispute by their own conduct, costs may be ordered against them even if the injunction is refused

Common mistakes when defending injunctions

Treating the urgency as the applicant's problem

Even if the applicant has artificially created urgency, you have a short window to respond. Acting quickly is essential.

Bringing emotion to the hearing

Strong feelings about the underlying dispute do not help. The court wants to see calm engagement with the legal issues.

Failing to put in a witness statement

Without your own evidence, the court has only the applicant's version of events. Even a short witness statement is significantly better than nothing.

Ignoring the cross-undertaking

The cross-undertaking is a significant protection. If you have evidence that the applicant cannot meet it, raise this clearly.

Conceding too much

The temptation to acknowledge minor faults can lead to wider concessions. Each concession should be considered carefully against its legal effect.

When to take legal advice

Property injunction proceedings are technically demanding and time-pressured. The interim hearing often decides the practical outcome of the underlying dispute. Specialist barrister representation is usually well worth the cost.

A direct access barrister with property litigation experience can advise on the strength of the defence, draft your witness statement, prepare a skeleton argument and represent you at the hearing.

Want a barrister to review your case?

Whether you need full representation at a hearing or just a one-off conference to take advice, our team can match you with the right specialist quickly. There is no charge for the initial enquiry. Tell us what you are dealing with and we will arrange a fixed-fee quote.