This week: Sarah Wardell considers the need to approach applications for interim interdict with caution

Life's greatest learning opportunities often come from things that go wrong. Only businesses that are properly vested in learning from mistakes are truly positioned to maximise their potential.

The aviation industry has this down to a fine art. When things go wrong, the black box flight recorder ensures that their errors are "data rich". That industry's ability to learn from its mistakes has taken it from one of the most dangerous forms of transport to one of the safest.

The law is no different. As part of the world's largest law firm, our disputes team is also "data rich": so here we use our knowledge of why things go wrong to help you to either avoid disputes in the first place, or to identify opportunities for fighting your client's corner.

Interim interdict is sought at the applicant's risk and so should be approached with caution

From caterpillar cakes to gin bottles, the recent flurry of "copycat" supermarket product claims have highlighted the importance of the Scottish remedy of interdict and its English equivalent, injunction.

Interdict is a court order requiring a party to refrain from taking certain action in order to protect the rights of the applicant. It can often be an essential preventative measure for a party seeking to protect its rights or property. It is most commonly sought urgently, on an interim basis, at a very early stage in proceedings, and remains in place as the substantive proceedings progress unless it is recalled.

However, interim interdict should be approached with caution. When interim interdict is sought, an in-depth analysis of the merits of the case is not conducted by the courts, due to the urgent nature of the circumstances. If, as proceedings progress, it can be established by the respondent that the interim interdict was not justified (referred to as wrongful), then it will be recalled and the party against whom the order was granted (the respondent) will be entitled to damages in respect of any loss suffered. Importantly, it is the act of recall that creates the entitlement to damages – there is no requirement for the applicant to have acted in bad faith.

Critically, at this point, the only consideration for the court will be the level of those damages. Depending on the scale of the dispute, this could result in a sizeable exposure for the applicant. This will always be fact-specific and may be further complicated by the fact there may not be enough information at the time of recall to know what a respondent's damages may be.

If you are contemplating interim interdict proceedings what, then, should you be thinking about when balancing this risk in what can often be a time-sensitive situation?

It can be distilled to a balancing exercise of the following: on the one hand, does the risk of you not seeking an interim interdict outweigh, on the other hand, the potential exposure to damages should it later be determined to be wrongful?

• The primary consideration will most likely be the scale of potential damages, so this should be assessed, insofar as it is possible to do so.
• How quickly can matters be raised and progressed so as to limit potential exposure to damages (e.g. are expedited proceedings or use of the commercial procedure possible)?

In conclusion, interim interdict is not something to rush into. Advice should be sought at as early a stage as possible to assist in what could be characterised as the "look before you leap" exercise.

Previous Black Box Tips

• 7 September 2022 - Black box tips from Dentons' Scottish Disputes team: Drafting dispute resolution clauses to avoid protracted disputes
• 24 August 2022 - Black box tips from Dentons' Scottish Disputes team: The duty to preserve evidence where litigation
• 10 August 2022 - Black box tips from Dentons' Scottish Disputes team: Ensuring the enforceability of exclusion and limitation clauses
• 27 July 2022 - Black Box Tips: Maintaining privilege over legal advice within an organisation
• 13 July 2022 - Black Box Tips: Ensuring your terms and conditions apply in a "battle of the forms"
• 29 June 2022 - Black Box Tips: No oral modification clauses