Fuel Rights Handbook 20th editionChapter 14: Remedies5. Using the civil courts Injunctions/interdicts
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Injunctions/interdicts
An ‘injunction’ (‘interdict’ in Scotland) is an order made by a court which either prohibits someone from doing something (a ‘prohibitory’ injunction) or instructs someone to do something (a ‘mandatory’ injunction). For example, if a supplier or landlord illegally cuts off your supply, you could ask for an injunction to get it reconnected.1Gwenter v Eastern Electricity plc [1994] Legal Action, August 1995, p19 Failure to obey an injunction is contempt of court, punishable by fines, or even imprisonment in extreme cases.
In urgent cases, you can get an injunction in the absence of the other side (what is known as an ex parte injunction) – eg, where locks have been changed without permission or a meter has been unlawfully removed. The injunction is obtained by going to court and making an appointment for an urgent hearing. A standard form (N244 – Notice of Application) is provided, and you are asked to provide evidence in the form of a statement of truth. Normally, the claim for an injunction is part of an action for damages. The application is made before a judge who makes a decision as to whether the injunction should be granted and gives directions about how the other side (known as the defendant) is to be notified with her/his decision. Note: applying for an injunction can be costly. You will need to pay a court fee of at least £1552HCTS, Court Fees for the High Court, county court and family court, 2 August 2016 and should also seek advice from a solicitor before using this remedy. The legal help scheme is no longer available for advice about this type of debt, so you would need to meet the cost of instructing a solicitor yourself.
Although there are some situations in which an injunction is granted almost as a matter of course (eg, illegal eviction), you have no ‘right’ to an injunction. Injunctions are within a court’s discretion and whether or not they are granted depends on the overall circumstances of the case.
The most common situation in a dispute with a supplier is where you ask for an ’interim’ injunction (or ’interim’ interdict in Scotland). This is when you need a temporary court order quickly, usually valid until the whole case can be put properly before the court.
An example where it might be necessary to threaten or seek an injunction is where a supplier starts action to disconnect a supply by mistake – eg, where action is taken against the wrong address. Normally, you will have had a warning but the situation can arise where a supplier or its agent has obtained a warrant against the wrong address and begins steps to disconnect or install a prepayment meter. Or you come home from a holiday to find you have been disconnected in error by warrant concerning another customer.
In England and Wales, the court applies a balancing act, and it is necessary to show a prima facie case and that the harm to yourself is of such a nature that damages alone would not amount to a sufficient remedy if action is not taken immediately.3American Cyanamid Co v Ethicon Ltd [1975] AC 396 In Scotland, an interim order for specific implement should ordinarily only be granted if there is a prima facie case of a breach of a legal obligation, and the balance of convenience favours grant of the order.4Massie v McCaig [2013] SC 343; British Gas Trading Ltd and Centrica PLC (Pursuers) against Derek McPherson (Defender) [2020] CSOH A106/62
During normal court opening hours, a hearing can usually be obtained very quickly. You should try to give as much notice as possible to the energy company. Email or fax a letter to the supplier where circumstances allow, addressing it to the legal department. The threat of applying for an injunction may be sufficient to obtain a suitable response from the supplier and make applying for the injunction unnecessary.
In this situation, neither you nor the supplier/transporter has time to present your case fully, and the court has to decide without hearing the evidence in full. The court will consider the ‘balance of convenience’ – ie, whether you or the supplier/transporter has more to lose or gain from the refusal or granting of an interim injunction, including whether a later award of damages will make up for any such loss.5The principles are set out in American Cyanamid v Ethicon Ltd [1975] AC 396 For example, where a supplier threatens disconnection, the court will balance the inconvenience to you of being disconnected against the inconvenience to the supplier of having to continue to supply someone regarded as a bad customer. A court almost always considers the balance to be in your favour if you are prepared to agree to a prepayment meter at least until your dispute is resolved.6Gwenter v Eastern Electricity plc [1994] Legal Action, August 1995, p19 If an immediate injunction is granted you will be asked to serve the supplier with notice of the order immediately by phoning them or faxing a letter; a copy of the order will also be drawn up by the court. Failure to obey an injunction puts the supplier at risk of contempt proceedings, for which it may be fined or individuals may be jailed as a punishment. In emergency situations, injunctions can be obtained outside normal court hours. The court will have a telephone number to contact in such cases and injunction can be granted by a judge over the phone.
Can you get an injunction for repairs or to restore your supply?
A court might grant an order for a mandatory injunction or appoint an expert, manager or receiver to carry out repairs to a property to restore a power supply. Such an order may only be made ’in the most exceptional circumstances’ where it is clear that a breach has occurred which is causing actual and immediate major discomfort and inconvenience and is a real risk to health.7Parker v Camden LBC; Newman and another v Camden LBC [1985] 2 All ER 141