interim relief can you seek during commercial litigation

Interim Relief You Can Seek from the Court during Commercial Litigation

Interim orders preserve the rights, assets, or interests of any party to litigation during the proceedings of the case. This article will elaborate on the interim reliefs a party can seek from the court during commercial litigation and when to request them. It will also explain how a commercial litigation lawyer can help a party seek appropriate interim relief.

An order for interim relief is usually valid until the final hearing of the case unless the court vacates it at the request of one of the parties. In corporate and commercial litigation, the aggrieved party may seek the following interim reliefs:

  • Injunctive relief;
  • Mareva injunction to freeze assets;
  • Norwich order for information from third parties; and
  • Anton Pillar order to search and seize evidence.

Injunctive Relief

‘Injunctive relief’ or an ‘injunction’ is an equitable remedy designed to grant immediate relief to a party to a lawsuit. It requires a business entity or individual to take a particular action or refrain from doing a specific act.

A ‘mandatory injunction’ requires a person to do something. In contrast, a ‘prohibitive injunction’ restrains certain conduct of a party to the litigation.

The court may grant an injunction as an interim relief or a final remedy. The courts grant temporary injunctions until the final outcome of the proceedings. For example, the court may order an interim injunction to prevent a majority shareholder from selling their shares until the final hearing of the matter.

The court may grant a temporary injunction where a party can prove:
  • There is a serious question to be tried;
  • The moving party would suffer irreparable harm if the requested relief is not granted; and
  • The balance of convenience lies in favour of the granting of the injunction.

Mareva Injunction to Freeze Assets

A party in a commercial dispute may request the court to restrain a person from disposing of its assets before the final decision in the matter. Such an order is known as a ‘Mareva injunction’.

A Mareva injunction is an extraordinary remedy the court grants to freeze someone’s bank accounts and assets for a particular time. Its objective is to prevent a defending party or non-party from disposing of their assets for a specific period.

Mareva injunctions are usually pursued and granted without notice to the other party. The court may grant a Mareva injunction when there are serious allegations of embezzlement, fraud and movement of assets for illegal purposes against the opposite party.

Generally, the party seeking a Mareva injunction must first satisfy the test for regular injunction mentioned in the previous section. The court may then grant a Mareva injunction if the moving party also:

  • Makes full and frank disclosure of all relevant matters within their knowledge;
  • Gives sufficient details concerning their claim against the opposite side;
  • States the grounds for believing the opposite party has assets in the court’s jurisdiction to freeze;
  • Mentions the grounds for believing there is a risk of the assets being moved or disposed of before satisfying the judgment or award; and
  • Giving the undertaking to pay damages for any damage caused by the Mareva injunction to the opposite side of the moving party is not successful in the overall lawsuit.

Norwich Order for Information from Third Parties

Sometimes a party to a commercial dispute does not have the necessary information to decide whether to file a claim. A ‘Norwich order’ is an equitable remedy that permits discovery from third parties without a pending lawsuit.

The aggrieved party can seek a Norwich order to:

  • Identify the importers of goods infringing a patent;
  • Obtain IP address from an internet service provider regarding tortious or fraudulent activity;
  • Seek financial records from a financial institution;
  • Trace and preserve the movement of funds and assets; and
  • Determine the existence of a cause of action.

The court can grant a Norwich order to compel a third party to preserve and produce evidence in its possession. The court may grant a Norwich order if the moving party shows:

  • A valid, bona fide, or reasonable claim;
  • The third party from whom the information is sought is somehow involved in the impugned acts;
  • The third party is the only practicable source of information; and
  • The interests of justice favour the disclosure of information.

Anton Piller Order to Search and Seize Evidence

An ‘Anton Pillar order’ is an extraordinary remedy similar to a civil search warrant. The remedy allows the moving party to enter the defending party’s premises to search for and seize evidence, including electronic records and equipment. The primary objective of an Anton Piller order is to stop a dishonest defendant from evading the court’s processes by destroying the relevant evidence.

The court may make an Anton Piller order where the moving party demonstrates:
  • They have a strong prima facie case;
  • The harm, potential or actual, to the moving party is grave;
  • There is clear evidence that the defending party has incriminating documents or things; and
  • There is a real possibility that the defending party may destroy the incriminating documents or things.

How A Commercial Litigation Lawyer Can Help

Many companies appoint a chief legal officer (CLO) or a general counsel to help them deal with legal issues. The CLO oversees the company’s in-house legal team and ensures its legal department functions properly. The CLO reports to the company’s chief executive officer and advises the board of directors regarding legal and regulatory matters. They can provide legal counsel to senior management regarding the legality of their next steps.

A CLO can act as a bridge between the company and its commercial litigation lawyer. They can assist the commercial litigation lawyer with ongoing litigation and advise them on the company’s need for urgent relief.

A commercial litigation lawyer can use their knowledge of the law and legal process to help you determine what interim order may be necessary to protect your business interests. They are trained in navigating the legal system, negotiating settlements and advocating in court. They can help ensure you bring the suitable motion at the right stage to preserve your rights.

A commercial litigation lawyer allows businesses to ensure that their interests are protected throughout the litigation process. This often provides peace of mind, where a party can rest assured that someone is looking after their business interests.

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Due to the complexities and the number of procedural steps involved in commercial lawsuits, it may take months or even years for the court to decide on a matter. In some instances, waiting for the case’s final hearing may cause irreparable harm to a party.

Sometimes, a party may need immediate relief to preserve evidence or prevent the removal of assets from the court’s jurisdiction. Any delay in bringing the required motion may be fatal to the moving party’s claim.

In such cases, a party to a dispute may request the court to grant them some interim remedies. If granted, the interim relief preserves the aggrieved party’s rights until the final decision.

A commercial litigation lawyer can advise you on what interim relief to request from the court and when to seek them. They will review the facts of your case, the applicable law and the legal procedure to make that assessment.

A commercial litigation lawyer can help you secure an appropriate order from the court. They will present the necessary facts and evidence and make relevant arguments to increase your chances of success.

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