Alex Massie

Carter-Ruck’s Own Goal

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I make no particular comment about this chatty stroll through the ways and means of getting an injunction, save to note that it was written by Nigel Tait, a partner at Carter-Ruck and appears on the firm's website:

In many cases it is clear to the lawyer, within minutes of taking instructions, whether or not the exercise may be worth while or is likely to be successful and, if it is, it is important to explain to the client:

    i.    the risks of it going wrong; and

    ii.    the risks of it going right!

If a client unsuccessfully applies for an injunction it may well draw more attention to the libel or breach of confidence than leaving it alone. The client should be told to foresee headlines such as "The story he tried to ban" or "The photographs they didn't want you to see".
A client will also need to be given the best possible idea of the likely costs of both sides and the solicitor needs to be sure that if he is going to instruct counsel he will be covered for their fees by the client!

As to the risks of it going right, a solicitor must explain to the client that if he obtains an injunction it will be necessary to issue proceedings and pursue them vigorously until trial or settlement. Additionally, and most importantly it is necessary to explain the "cross undertaking as to damages" to the client. The position is this. If the client obtains an interim injunction but subsequently the case goes to trial and he fails to obtain a final order the defendant can maintain that he was restrained unjustly and will generally be entitled to damages for any losses that have been sustained. Emphasis added. Sometimes, mind you, it can all go right (ie, you obtain your injunction) and it still goes horribly wrong.

Written byAlex Massie

Alex Massie is Scotland Editor of The Spectator. He also writes a column for The Times and is a regular contributor to the Scottish Daily Mail, The Scotsman and other publications.

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