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CHANCERY HIGH COURT BIRMINGHAM – APPROACH TO DISPUTED FACTS IN INTERIM INJUNCTION CASES

Following the grant of an interim injunction application under CPR 25.1 at a ‘no notice’ (formerly ‘ex parte’) hearing on the usual terms that the Order and supporting (but untested) evidence by way of witness statements together with an issued claim form be served quickly on the intended respondent, where a sharp dispute as to the basic facts arose at the subsequent hearing at which the court was to consider whether to discharge the injunction, continue it or vary it, the court adopted the approach of (A) ’taking a view’ as to the more credible version of the disputed facts and (B) considering what should be the ‘modus vivendi’ or temporary arrangement it should endeavour to establish.  This could only of course be a provisional view, and an Applicant had an intrinsic advantage (marginal but nonetheless pivotal) in that its legal advisers had had time to prepare and present its factual (but untested) evidence for the initial no-notice hearing whereas the legal advisers for the respondent – whose witness statements had to be prepared, served and filed very quickly before the ‘return date’ – had to act in relative haste. The court of course still has to decide the outcome of the hearing between the parties on the untested evidence before it without having regard to the disparity in the amount of time each party had had to prepare their evidence.

Charles Machin

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