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Injunctions - when will the court order fortification of a cross-undertaking in damages?

18 November 2014. Published by Geraldine Elliott, Global Head of Commercial Disputes

The Court of Appeal endorsed for the first time the accepted criteria that must be satisfied before the court can order an application for fortification of a cross-undertaking in damages in EVP v Malabu Oil.[1]

In summary, the court must make an intelligent estimate of the likely amount of loss which might result to a respondent by reason of the injunction.  The applicant must show that there is a sufficient risk of loss so as to require fortification and that the grant of the injunction has caused or is likely to cause such loss.

Whilst the test is not new, the case provides helpful guidance for an applicant seeking such fortification.  For the full article, including the test and case law on fortification, please click here.

[1] Energy Venture Partners Ltd v Malabu Oil and Gas Ltd [2014] EWCA Civ 1295