An injunction is a powerful legal remedy where the court orders a party to stop doing something. An application or motion to obtain an injunction is often brought on an urgent basis to prevent a party from doing something wrong, such as to prevent a departing employee from stealing confidential information and clients. The test for obtaining an injunction order is:
1. Whether there is a serious issue to be tried;
2. Whether irreparable harm may be suffered to the company seeking an injunction if it is not granted; and
3. Whether the balance of convenience favours granting the injunction;
Injunctions require the moving party to provide affidavit evidence to the court in support of the motion. There may be cross examinations on affidavits. The most common type of injunction is called an interlocutory injunction. This is essentially a temporary injunction that is granted for a certain period of time or until trial.
An Anton Piller order is another powerful tool in the civil litigator’s arsenal. It is a form of civil search warrant that displaces the normal rules on discovery of records. It enables the Applicant to attend at the premises of the defendant, without notice, and take possession of the records of the defendant before they can be moved, destroyed or used improperly by the Defendant. An Anton Piller order is especially important in the modern era of heavy dependence on computer technology, where documents are easily deleted, moved or destroyed. The release of a company’s confidential information into the public domain may drastically harm the company. Courts are careful in granting this relatively drastic form of injunction, however the court will equally give weight to the seriousness of the misuse of confidential information. To obtain an Anton Piller order, the plaintiff must demonstrate that it has a strong prima facie case. The legal test is:
- The damage to the plaintiff of the defendant’s misconduct, potential or actual, must be very serious;
- There must be convincing evidence that the defendant has in its possession the incriminating documents or things; and
- The plaintiff must show that there is a real possibility that the defendant may destroy such material before the discovery process can do its work.
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