The Mito: 1987

The court discussed the requirement of undertakings in damages from a party seeking an interim injunction: ‘When such security is originally sought it is sought as a condition for the grant of the injunction, in other words the plaintiff is told if you want this injunction you have to pay the price by fortifying the undertaking to damages. The plaintiff can then either agree or disqualify himself in obtaining the injunction . . Mr McClure says that the plaintiff has already paid a price here when the cross-undertaking was given, which is perfectly correct as far as it goes. The plaintiffs did not ever agree nor were they ever asked to pay the extra price that is the fortification of the undertaking. If they had been asked to do so, it may very well be that they would . . have declined to take an injunction. Of course, Mr McClure accepts, as he must, that the court has no power to impose an undertaking on the plaintiffs and herein I think if I were to make this order I would in essence ex post facto be imposing a conditional term to the undertaking without any knowledge one way or the other as to what the situation would have been if it had been sought by the defendant in the first place. That is something which I think is wrong in principle to do.’


Hirst J


[1987] 2 Lloyd’s Rep 197

Cited by:

CitedSmithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 May 2022; Ref: scu.231213