Against the background of ongoing media coverage regarding injunctions and super injunctions, it is easy to forget that preventative court remedies are not just available to celebrities or those in the public eye. Likewise, media outlets are not the only entities that can be prevented from operating in particular ways by such orders.
Interdict
In Scotland the equivalent of the English injunction is called an interdict. This is a court order that seeks to prevent unlawful injury to a claimant's rights before the harm is done. It can be sought either when a wrong is actually being committed, or when there are grounds for reasonable apprehension that a wrong is intended.
If the other party fails to comply with the terms of the interdict, they may be subjected to criminal penalties including imprisonment. Interdicts can be granted to prevent infringement both of private and public rights. The proceedings can be brought by an individual or company who has an interest in enforcing the right in question.
These orders can also be awarded by a court on an interim or temporary basis, without the subject of the interdict even having the opportunity to present their side of the story. However, there is something very simple you can do to avoid this.
Caveat
In Scotland, an early warning system exists whereby you can ensure that an interdict will not be granted against you without an opportunity to be heard by the Sheriff or Judge who is being asked to make the order. This protection is achieved by instructing a solicitor to lodge a document called a 'caveat' on your behalf. That solicitor would receive advance notice should anyone apply for an interim interdict against you. Your solicitor would then have the opportunity to attend court and argue why the order should not be granted.
We recommend to all of our commercial clients to have caveats lodged at each Sheriff Court where an order is likely to be made - usually the place of their registered office, any places of business and locations of substantial contracts - and in the Court of Session.
Caveats are inexpensive and have a lifespan of one year.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.