and in preparation of the evidence and application. Understandably, the client/ applicant is usually reluctant to explain in significant detail some of the more difficult aspects of its case and past conduct in its commercial dealings with the target/respondent. Equally, the applicant is, particularly in the context of feeling significantly aggrieved by the opponent’s conduct, extremely reluctant to highlight the most promising aspects of its opponent’s defence. However, it is precisely these conversations that must be had to allow instructions to be drafted into in the affidavit supporting the injunction applications. Needless to say, extracting these instructions can sometimes cause very uncomfortable moments between lawyer and client. But it is this process that usually provides the best way of ensuring that the injunctions are retained once they are under significant attack by the opponent at the return date and beyond during the interpartes period of the litigation. Without pushing hard in such conversations, it is unlikely that the client will pass over information that is (partially) detrimental to its position – which can, in turn, put retaining the injunctions at significant risk. What needs to be taken into account to ensure that an injunction neither underreaches nor overreaches in its scope? When making the application, all of the written evidence, draft orders, written submissions and oral submissions must be pitched appropriately so as not to overstate the factual position and the legal position, or what is being asked for in the injunctions themselves. This is a constant and complex battle that the applicant team must have with itself so as to not overreach, and again allow the client/applicant to be successful when under attack in inter-partes hearings. By the same token, we must be equally careful not to underreach in conclusions and inferences that can be drawn on the evidence and in the reach of Orders to allow for their maximum utility in all possible circumstances. The experience of preparing numerous injunctions and going through the processes described above also allows for our department to strenuously test opposing applicants and their legal teams when working on the defence team in these injunctive matters. In conclusion, it is a highly complex, extremely challenging, but ultimately enjoyable area of law in which to operate. Robert Wynn Jones Robert Wynn Jones is a partner in Mishcon de Reya’s Litigation Department and co-head of its Investigations Group. As a specialist in civil fraud, asset tracing and injunctive work, he has acted for both claimants and defendants, obtaining and opposing multiple search orders, asset freezing orders and disclosure orders in large crossjurisdictional commercial disputes. Mishcon de Reya Mishcon de Reya is one of the UK’s leading law firms, employing over 1,200 people – including 600 lawyers – across its offices in London and Singapore. Mishcon’s team acts in accordance with the firm’s socially conscious values to affect profound and far-reaching change for their clients across all areas of law. Contact Robert Wynn Jones Partner, Mishcon de Reya LLP Mishcon de Reya LLP, Africa House, 70 Kingsway, London WC2B 6AH, UK Tel: +44 02033 217443 Mob: +44 07525 392169 Fax: +44 02037 611856 E: robert.wynnjones@mishcon.com www.mishcon.com EXPERT INSIGHT 49 The most common reason for discharge of an injunction ultimately relates to the obligation of full and frank disclosure.
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