Out-Law Guide 4 min. read
16 Sep 2022, 4:22 pm
Interdicts in Scotland are equivalent to injunctions in England and Wales and can be a useful preventative remedy, granted by the court either against a wrong which is being committed, or against an anticipated wrong or violation of a party’s rights. Their use, though, has consequences.
Interdicts are intended to protect rights and are often sought in circumstances such as an employee leaving to work for a competitor where it is feared they will take client lists or trade secrets with them or where an allegedly defamatory article is to be published in the press. An interdict will only be granted if the court is satisfied that the wrong has been committed, or that there is a reasonable likelihood that it will be committed. Interdicts will not be granted against the repetition of a wrong unless the court is satisfied that there is a reasonable likelihood that the wrong will be repeated.
An interdict is a personal remedy aimed at a particular person, or identifiable persons, named in the writ as having violated, or threatened to violate, a person's rights. To be able to bring an action for interdict in court a pursuer must establish a legal relationship which gives him a right which the defender has infringed or threatened to infringe.
In some circumstances a pursuer may seek an “interim interdict”. This is only a temporary remedy and is granted at the discretion of the court. In considering whether to grant an interim interdict, the court will have to be satisfied on the face of the case not only that it has jurisdiction to consider the matter but also that the pursuer has title to sue, that there is a substantial question to try, and that the matter is urgent. Undue delay in seeking an interim interdict may result in its refusal. In addition, the court must be satisfied that the “balance of convenience” favours the granting of the order.
The interdict which is sought by the pursuer must be precise in nature and carefully worded so that the other party can be sure what they are restricted from doing
Proceedings for interdict can be brought in either the Sheriff Court or in the Court of Session. If proceedings are brought in the Sheriff Court, then it will be in the Sheriff Court where the defender is based, or else in the Sheriff Court of the place where it is alleged by the pursuer that the wrong is being committed by the defender or it is likely that it will be committed. Proceedings may be brought in the Court of Session where the defender is domiciled in Scotland or where it is alleged that the wrong is taking or will take place in Scotland. Previously, an interdict or interim interdict granted in a Sheriff Court was effective within that sheriffdom only. The Courts Reform (Scotland) Act 2014, however, has given a sheriff power to grant an interdict having effect outside his sheriffdom.
The interdict which is sought by the pursuer must be precise in nature and carefully worded so that the other party can be sure what they are restricted from doing. When another alternative legal process is available to remedy an alleged wrong, interdict will often not be available. The correct remedy may be another legal process or an appeal under statutory provisions. Where parliament has provided a statutory remedy for an alleged wrong, interdict will often be excluded.
Where a pursuer has sought interim interdict, this may be considered by the court either before or after the initiating writ or summons has been served on the defender. If a person is apprehensive that an interdict may be sought against them, and an interim interdict applied for in their absence in court, they may lodge a caveat with the court. A caveat is a written request by an individual or a company to the court for notice to be given of any application made for an interim order in relation to that individual or company. The effect of a caveat is that before certain interim orders are pronounced by the court, the solicitors acting for the individual or company will be notified and given an opportunity to appear for their client before an order is granted. One of the anomalies of the new power of sheriffs to issue Scotland-wide interdicts and interim interdicts is that there is no equivalent provision for a Scotland-wide Sheriff Court caveat.
If the defender does appear at the hearing of the interim interdict, then the parties will focus their arguments before the court on whether there is a case to answer to at all, and if there is, where the ‘balance of convenience’ lies. In this respect, the court is considering who will be prejudiced more by the granting, or refusal, of the interim interdict which is sought. There is no requirement that the pursuer give a cross-undertaking as to damages although the relative strengths of the parties may be a factor in determining the balance of convenience.
The court may attach conditions to its grant of an interim interdict or, as an alternative, the defender may give an undertaking to the court that obviates the need for the order. Any later breach of the terms of the undertaking given by the defender would be punished by the court as a contempt of court.
A right of appeal exists from the grant or refusal of and interdict or interim interdict. In the Sheriff Court, a party can appeal to the Sheriff Appeal Court, and thereafter may appeal with leave to the Court of Session. In the Court of Session it will be to the Inner House initially.
If an interdict is perpetual, it will apply without any restriction on its duration.
The process of interdict is quasi-criminal and a party who has been interdicted who fails to observe the terms of the interdict, once notified of it, is liable to summary punishment, which can include a fine or imprisonment. In one case before the Court of Session Paul Mackenzie was sentenced to 10 months imprisonment for his repeated breach of an interim interdict and interdict obtained against him. In sentencing him the Court referred to his "wilful defiance" of the Court's orders and "that only a prison sentence would adequately mark the gravity and circumstances of the breaches". A reminder not only of the consequences of ignoring the court but also how useful the order can be in protecting rights.
Whilst a useful and on occasions game-changing remedy, parties should bear in mind that an interim interdict is always obtained at the claimant's risk. The potential repercussions of an interim interdict can be serious and, if that order is later recalled, damages for wrongful interdict can be payable, and these may be substantial. Courts in Scotland have supported the proposition that, in general, recall of an interim interdict amounts to conclusive proof that the order was wrongfully obtained, with the only issue then being the level of damages payable as a consequence. Whilst such cases are rare, the risk cannot be underestimated.