Bonding Requirements and Damages from Wrongful Entry of an Injunction

Section 5/11-103 of the Illinois Code of Civil Procedure gives Illinois trial courts discretion to require a private plaintiff who seeks an injunction to post a bond, but governmental entities are exempted from bonding. For good cause shown, the court need not require a bond. Also, the court has discretion not to require a bond if the defendant does not demand a bond or if the plaintiff can demonstrate undue hardship from having to post a bond.

The public policy that supports the court’s discretion to require a bond for a private party that seeks an injunction, is protect the party against whom an injunction is issued from being damaged by the injunction if in the course of the ensuing lawsuit, the court later concludes that the plaintiff should not have sought the injunction, and that its entry was wrongful.

In other words, the law can provide bonding in exchange for an injunction as an advance remedy or precaution, so the injunction in force until the litigation is resolved on the merits does not unduly interfere with the defendant’s life or business. A wrongfully entered injunction should be distinguished from where the entry of a preliminary injunction may not have been wrongful when entered based on the presentation of the plaintiff and response of the defendant at the time, but the defendant eventually prevails on the merits of the case. and the injunction must be dissolved or terminated.

Section 5/11-110 of the Illinois Code of Civil Procedure authorizes the court to impose damages on the plaintiff for injuries from a wrongfully issued preliminary injunction. Damages can include litigation costs incurred to overturn the injunction, plus attorneys’ fees.

To dissolve an injunction based on alleged wrongful issuance, the defendant must make a sworn motion that identifies the grounds constituting wrongfulness, and must explain the damages caused by the injunction and amount of claimed damages. If the court grants this motion but does not award the defendant all of its claimed damages, the defendant may still recover the injunction bond if there had been a bond required.

The emergency and injunctive relief attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting injunction claims in the federal and state Chancery courts in Illinois in a wide variety of business dispute lawsuits. We are knowledgeable regarding the changes and complexities of injunction law and prepared to devote substantial time to the matter on an emergency basis. We are committed to fighting for our clients' rights in injunction and emergency business relief cases at both the trial and appellate court levels. We have successfully defended or prosecuted scores of injunctions and then won on appeal in the expedited appeals that often follow injunction decisions. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated business separation, accounting and breach of fiduciary duty case for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.

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