Every injunction conversation eventually reaches the sentence that changes the client’s face: “and you’ll be giving the court an undertaking as to damages.” It is the near-universal price of interlocutory relief, the honest half of every application decision, and — strangely — almost no firm explains it in public. This page does, because clients who understand the price make better decisions than clients sold the exciting half.
What It Is, and Why the System Needs It
Interlocutory injunctions restrain people before anything is proven — on affidavits, at speed, sometimes ex parte. The undertaking is what makes that tolerable: the applicant’s promise to the court that if the injunction proves to have been wrongly granted, they will compensate the respondent for the interim loss it caused. It gets called on when the case resolves against the restraint — the trial lost, or the order discharged (material non-disclosure at the ex parte stage being the classic route) — through an inquiry into damages quantified with evidence: the trading interrupted, the contracts lost, the sale delayed. And where the promise’s value is doubted — modest means, shell vehicles, applicants abroad — the court can require fortification: money into court, security, a bond. The planning consequence is stated on every applicant page of this site: the honest sizing happens before applying — what does this restraint cost the other side per week if I’m wrong? — because an application that dies at fortification was never properly costed.
Living with It — Both Chairs
For applicants of ordinary means: the undertaking is confronted, not hoped away — and it is rarely an absolute bar: courts assess it in the round (closing the courts to everyone but the wealthy is nobody’s law), realistic exposure is often modest (the boundary restraint is not the frozen trading company), narrower orders risk less, and candour about means beats inflation every time. Sometimes the honest answer is a different route — undertakings sought rather than orders applied for — and that triage is standard here. For respondents: the undertaking is your insurance policy inside their remedy, used actively — test it (fortification applications convert costless promises into committed capital and measure the applicant’s real belief), record against it (document restraint’s losses from day one, so any inquiry runs on evidence rather than reconstruction), and invoke it when discharge or trial goes your way. Most respondents never realise they hold it — which is why the defending page and this one tell both chairs the same truth: the undertaking is where injunction law keeps its honesty.
Making the Application Decision?
Then the undertaking is half of it. One conversation prices both halves honestly - the relief and its risk - in writing, before anything is committed.
Call 01 5827148