Interim Injunction vs Freezing Order
Comparing the American Cyanamid interim injunction (restraining or requiring an act) with a freezing order (Mareva injunction) under CPR Part 25 and Senior Courts Act 1981 s.37, which restrains a defendant from dissipating assets.
Overview
Interim injunctions and freezing orders are both forms of interim relief granted by the court pending a full trial, but they serve different purposes and the tests for obtaining them differ in important respects. An interim injunction under CPR r.25.1 prohibits or requires a party to do something (such as stopping infringing acts, preventing publication, or preserving property). A freezing order — also called a Mareva injunction after Mareva Compania Naviera SA v International Bulkcarriers SA [1975] — restrains a defendant from removing assets from the jurisdiction or dealing with them in a way that would frustrate enforcement of a future judgment. Both are serious remedies that can cause significant harm to the respondent, and courts approach them cautiously. An interim injunction is governed by the American Cyanamid principles (American Cyanamid Co v Ethicon Ltd [1975] AC 396). A freezing order requires the applicant to show a good arguable case, a real risk of dissipation, and that the balance of convenience favours the order. Freezing orders can be made on a worldwide basis in appropriate cases.
Side-by-Side Comparison
Interim Injunction (CPR r.25.1)
Pros
- Broad scope — can restrain any act or require positive steps; essential tool in IP, privacy, nuisance, and property cases
- Available on short notice or without notice (ex parte) in urgent cases (CPR r.25.2)
- American Cyanamid test is flexible — court balances all relevant factors including status quo
- Immediately enforceable — breach is contempt of court
Cons
- Applicant must give an undertaking in damages — if the injunction proves wrong, liability can be substantial
- American Cyanamid test is not absolute — in some cases (mandatory injunctions, defamation) a higher standard applies
- Not appropriate where the claimed harm is purely financial and damages would be adequate — court will refuse
- Short-notice applications require full and frank disclosure of all material facts — failure to disclose risks discharge
Best For
Preventing ongoing harm in IP infringement, privacy, nuisance, contractual breach, or property disputes — where money damages alone would not adequately compensate for the harm.
Freezing Order / Mareva Injunction (Senior Courts Act 1981 s.37; CPR r.25.1(f))
Pros
- Specifically designed to preserve the utility of a future money judgment — prevents defendants 'salting away' assets
- Can be made on a worldwide basis (worldwide freezing order) where the defendant has assets abroad — Babanaft International Co SA v Bassatne [1990]
- Can be combined with an order for disclosure of assets (ancillary order) to identify what assets exist
- Breach is contempt of court — powerful enforcement tool
Cons
- High threshold: must show real risk of dissipation — not just that the defendant may not pay; vague suspicion is insufficient
- Applicant bears significant risk via the cross-undertaking in damages — if the order is discharged, the defendant can claim losses caused by it
- Respondent may apply to vary the order to allow for ordinary living and business expenses — carve-outs are standard
- Third parties (e.g. banks) are bound by the order and may freeze accounts — causing commercial disruption
Best For
Cases where there is a real and identified risk that a defendant will remove assets from the jurisdiction or deal with them to frustrate a judgment — particularly in fraud, international commercial disputes, and dishonest breach of fiduciary duty cases.
Key Differences
Our Recommendation
Use an interim injunction (American Cyanamid) where you need to restrain ongoing or threatened wrongful conduct such as IP infringement, breach of confidence, nuisance, or contractual breach — and where damages would not adequately compensate. Use a freezing order where you have a money claim and a genuine, evidenced risk that the defendant will dissipate assets before judgment. Both require a cross-undertaking in damages and full and frank disclosure; both should be sought with urgency. In fraud cases, consider applying for both simultaneously — a freezing order to preserve assets and an interim injunction to restrain particular conduct.