Article by Nicola Solomon published in The Author of Summer 1993. Leading literary lawyer Nicola Solomon, a Deputy District Judge and Partner of Finers Stephens Innocent (179 Great Portland Street, London W1W 5LS, tel. 020-7344-7652) has kindly given AKME permission to reproduce this article. She can be e-mailed at nsolomon@fsilaw.co.uk.
The article is reproduced without any comment or editing by AKME.
I am often telephoned out of the blue by an author asking me to obtain an immediate injunction to stop a publisher doing something. The acts complained of are varied and include publishers about to put out a book which, to the client's eyes, is full of horrendous mistakes, infringes copyright or is defamatory - or a publisher disposing of its assets to avoid paying money owed to the client. An injunction is an immediate Court Order to cease the action complained of, often given on the author's application without hearing any evidence from the publisher. Injunctions can be obtained in a matter of days, or hours in very urgent cases. A person who fails to obey an injunction can be imprisoned for contempt of Court. Injunctions are therefore perhaps the most draconian powers the Courts have and consequently catch the imagination of the public far more than the common legal remedy of financial compensation. However, they are extreme measures only to be used in exceptional circumstances and are also extremely expensive to obtain. This article sets out in what circumstances you might be able to obtain an injunction and what the Courts will take into consideration before granting one.
First, you must establish that you have a good arguable claim on a serious legal question. You will have to show, for example, that a substantial breach of your copyright is likely to occur or that the publisher has made enormous errors in printing your book. Presumably you would not have gone to a solicitor in the first place if there was not a breach and this hurdle is usually cleared easily, but the next test is far more difficult for the author; the Court must decide on a 'balance of convenience' whether the injunction requested should be granted. This means it must decide whether more harm will be done to the author by publishing the book than to the publisher by preventing publication. When deciding in whose favour the balance of convenience lies the Judge will take into account various factors; the most important is whether damages would be a sufficient remedy for the breach. If, for example, there has been unauthorised copying of your work but you would probably have granted permission for its use had you been asked, such as five lines of your poem quoted verbatim in a novel, then a sufficient remedy would be to pay you a proper licence fee and the Court will not prevent publication of the novel. If, on the other hand, the damage likely to be caused to you is irreparable and outside the scope of money compensation (for example because your reputation will be severely damaged; or if the amount of money damage is very difficult to assess, such as the likely loss to you in revenue from sales of a book if it is published full of mistakes and the knock-on effect that would have on sales of your other works) an injunction may be granted. An injunction might also be granted if you are likely to be sued because of the breach or if it is in the public interest to stop publication, for example in the case of a publisher's error leading a respected medical handbook to contain the wrong advice on first aid.
The difficulty with the balance of convenience test is that it is a balance and a publisher is likely to be able to show, particularly if a book has already been printed, that it will make an enormous loss if it does not go out. Injunctions are usually ordered to continue until the full trial of the action when all issues will be decided. You may argue that even if you lose at trial a delay of, say, two years in publishing the book might not matter. But a publisher will almost certainly be able to show that it has put money into publicity, that the book is aimed at a certain market, that the book may go out of date and that the publisher's own reputation will be damaged by failure to supply a book which has already been pre-sold to bookshops. The publisher's estimated losses may well outweigh any financial loss you are likely to suffer and the Court may even hold that such loss is more important than your reputation.
A cross-undertaking
This problem is compounded for authors because whenever you ask for an injunction you must, except in extraordinary circumstances give a 'cross-undertaking in damages'. That is, you must show that you will be able to pay any loss that the publishers will suffer if you lose the case at a full trial. A publisher can easily demonstrate on paper that its damages if it does not publish your book would be high (although an author may look at these figures rather cynically when you see the small returns you actually get when your book is published) and many authors will have to offer their home or other major asset to the Court as security before an injunction will be granted. The Court will look at this requirement more leniently if the breach is very obvious and the Plaintiff is highly likely to win at trial, for example if there has been a completely unauthorised publication of your whole work.
In a defamation action a Court will not ordinarily restrain publication of a defamatory statement if the publisher states that it intends to prove at trial that the statement is true. This is because it has been decided that freedom of speech is more important than a possible loss of reputation. The Courts will only prevent publication of obvious lies. Unfortunately, therefore, there is little you can do apart from claim libel damages if someone makes unjustified statements which they claim that they can prove.
The Court Rules state that the usual purpose of an injunction is to 'preserve the status quo until the rights of the parties have been determined in the action' and you are much more likely to obtain an injunction to stop a book being published than to insist on its recall. Indeed, injunctions are almost never ordered in positive terms but only in negative ones: that is, to stop an act rather than to do one. You must therefore ask for an injunction promptly and certainly before the book is published. If you have unduly delayed (even if the book has not been published) you will not be granted an injunction particularly if such delay means that the publisher has spent more money towards the publication.
You may be able to obtain an injunction without telling the publisher of your application if the matter is so urgent that you could not contact the publisher in time, or if you can show that the publisher would be likely to circumvent the injunction if informed of the application, for example, by publishing the book beforehand or shipping your books overseas. If you do obtain an injunction without the other party being present then there will be another hearing a few days later when the publisher will have a chance to put its side of the case and apply for the Order to be lifted. One type of injunction which is often granted without the other party being present is a 'Mareva Injunction' which is used to prevent the dissipation of the publisher's assets, for example by freezing a bank account. Until the mid 19th century it was common to arrest Defendants and put them in prison until they had put up enough money to cover the Plaintiff's claim. Unfortunately today a Plaintiff has no such remedy but if it appears that a Defendant is about to give away or hide assets so that you will gain nothing even if you are successful in the case then you can apply for a Mareva Injunction to freeze enough money to cover your claim until it is decided. This remedy is only available if you know that the publisher has assets, you know where they are, and the publisher has seriously threatened to remove them so they cannot be traced. It is no good for use against a genuinely impecunious publisher who is about to go into liquidation without paying your royalties. Further, the Courts will only grant Mareva Injunctions where you are owed a substantial amount of money, probably not less than £5,000.
Is it worth it?
Legal costs are a big factor in deciding whether to apply for an injunction. Because an injunction must be obtained urgently your solicitor must drop everything to prepare the case; affidavits and other documents have to be prepared at short notice, a barrister has to be briefed and there is often a long wait at Court while the case is decided. After the Order has been made it has to be personally served on the publisher. These factors mean that obtaining an injunction will rarely involve legal costs of less than £5,000 to £10,000. Most solicitors will ask you to pay this money up front (unless you are able to obtain Legal Aid). Even if the injunction is granted, the publisher will not be ordered to pay your costs until you are successful at a full trial of the action, which would probably be two to three years later. Even then, you are only likely to recover about one half to two-thirds of your outlay in applying for the injunction. If you are legally aided the statutory charge means that your winnings will first go to pay your legal costs. For this reason it is only worth applying for an injunction if there is a large amount of money in dispute or if the principle of the matter is so important to you that you are prepared to lose out financially in pressing your point.
Injunctions are an urgent and exceptional remedy to be used in urgent and exceptional cases where they can be extremely effective in leading to a quick settlement of your claims. They are not appropriate where breaches are only minor or where you can be adequately compensated in money for any losses you may have. Authors will often find it extremely difficult to obtain injunctions in cases where a publisher can argue that there is no breach of contract, and they are impossible to obtain in a defamation case unless what has been said about you is an obvious lie. An injunction is more likely to be granted if there has been a gross infringement of your copyright which is likely to damage your reputation or where you fear that your publisher will deliberately dissipate its assets so as not to pay you money due (and very few authors are owed so much by their publisher that it will bother to do this). Don't therefore be surprised or disheartened when your solicitor informs you that you have a very good case, that you are likely to obtain substantial damages if you go ahead, that letters should be written immediately and proceedings started but that there is little point in applying for an injunction.
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