Equitable Remedy

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1: Introduction:

Injunctions not self contained

Prohibits/restrains/compels a particular activity

Attempt to try and prevent the violation of the right of a person

Temporary restraining order usually granted until the time of a trial

Discretionary remedy granted by the court

a. Perpetual:

Perpetual injunctions means that the condition that produced them remains (dumping on another persons property)

It’s a permanent injunction

Deemed to be a final relief

Granted after a trial

b. Interlocutory/Interim Injunction:

Granted to maintain the status quo

Prevents irreparable damage

Acquired between the filing of the matter and the trial

Binds a party to do or not to do something

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Temporary order that has effect until the final determination of the matter by the court

c. Mandatory Injunctions:

Impose a duty of positive action, must be done

Requires particular discretion because it may require constant supervision (Redland v Bricks: clay digging remove some of P’s land, court ordered that it be restored

d. Qua timet Injunctions:

Means because he fears,

right is not yet infringed he seeks an injunction because he fears (Redland v Bricks (p162)

Restrain wrongful acts which are imminent

Must prove imminent danger

The threatened injury will be irreparable

Impossible to protect P in the injunction is not granted

Vague apprehension not sufficient, must be immediate threat

2. GENERAL PRINCIPLES GOVERNING THE GRANT OF INJUNCTIONS

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a. Cause of action (COA)

Injunction is not a cause of action

Founded on a COA which must be substantive (be known by equity and law) (Day v Brownigg: naming of a house – COA must be justifiable before the court as mere convenience is not recognized; Paton v BPSA – abortion without consent- matter must be substantive as the court will not exercise jurisdiction to control personal relationship)

b. Damages inadequate

Grant of injunctions exercised judiciously

Damage adequate, no injunction

Factors the court considers:

The nature of the injury (is of a continuing nature which cannot be repaired by expenditure)

The availability of the defendant to pay and

The possibility of the repetition of the acts complained of

Case:

Shelfer v City of London Lighting Co: operations of light company was conitnous and had cracked the foundation of the house and made occupants sick

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TUTORIAL 20.03.13/SP p159

Undertaking:

May be called cross undertaking as well

Also price of the injunction

Condition for granting an interlocutory injunction (P must give an undertaking as to damages)

protection to the defendant in P does not establish rights to injunction

binds the P to compensate the defendant for any loss suffered (lyons v Wilkins p163)

Generally court does not grant injunction unless an undertaking is given (Blue Town Investment v Higgs)

Courts may waive undertaking for an impecunious party (Oxy Electricity v Zainiddin: strong claim but not a strongfinancialposition, impecinoisity should not bar participation)

Compare and contrast the two cases:Blue Oxy

No substantial matter Had substantial matter(passed the American Cyamid test 5Jackie

Blue Oxy

Impecunious Impecunious

PUB POL: court does not wish to turnWere barred by impecuniosity

Away bonafide claims because persons

•Court think you have a good case, may waive undertaking (KirkleesMBC v Wickles p167)

•c. Conduct of the applicant – clean hands doctrine:•May include being untruthful or defaulting (Armstrong Shepphard: P gave def permission to build on property then attempted to mislead the court)•Hardship to the defendant (Shell (UK) v Loskot Garage: Shell conduct in the way they managed there agreement caused hardship to the def)•Malice

•Court cannot restrain if the act is lawful but has malice, but malice influence the court (Christie Davey: no legal nuisance but malicious-music in apartment)

•Defence of unclean hands must be the subject matter of the dispute (Argyll v Argyll: P gets injunction against publication of her private life, immorality does not nullify the grant and the court must protect the confidentiality of wife/husband communications)

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d. duty to disclose

Must disclose all material/facts when seeking injunction (Daglish v Jarvie: def omitted to tender all information to the court)

e. Public interest

Court engage in a balancing exercise between public and private interest:

Miller v Jackson: Public interest upheld to maintain the environment such as playing field over development

Kennaway v Thompson: court deemed that public interest did not override the private rights of the claimant

f. whether the injunction will be effective

No injunction will be granted where:

Injury complained of ended before the trial/impossible to restore the status quo

Time and purpose has been frustrated (AG V Guardian Newspaper: secrets had already been published so no point for injunction)

g. Delay/Aquiescence in seeking injunctive remedy

P guilty of laches and acquiescence = no injunction 7Jackie

Lapse of time and element to determine acquiescence(mere delay is not a bar for enforcing legal right (Braville v Applebee: P voice concern before house built but did not effect proceeds till after, no injunction)

3: Interim/Interlocutory Injunction (fellows & Sons v Fischer: supports the below points: cases do not go by trial, parties accept the prima facie view of the court and settle)

Prohibits def temporarily from what P seeks to prevent permanently

Preserve status quo until trial (may get a perpetual injunction after the trial)

Trial for inj is not based on the merits of the case

a. Undertaking (see earlier slide)

b. Principles governing grant/refusal: American Cyamid:

Four principles emanated from this:

1) Serious question to be tried (p177)

Evidence must disclose some prospect of winning

Does not have to show 50% chance of winning (old way prima facie)

Demonstrate that there is a serious question to be tried.

Rationale Lord Diplock: not stage to resolve conflict8Jackie

Prior to American Cyamid, test was prima facie-showing 50& chance of success (Fellows v Fischer)

Effect of prima facie test, trial w/in a trial or outcome of case may be decided (Fellows & Son v Fischer)

ii. Inadequacy of damages for other party:

Is damage an adequate remedy (between seeking the inj and the trial) (Allen v Jambo: claimant not in financial position to honour undertaking and an appreciable damage, as a general rule inj will not be granted; Cambridge Nutrition v BBC: irrespective of mean damage may still be inadequate-broadcast situation)

Ps impossibility to pay is not a reason for refusal of the injunction (remember the gen rule of undertaking - Blue Town Investment v Higgs)

iii. Balance of convenience

If there is a serious question to be answered, court weighs the inconvenience or damage if the inj is not granted

Avoid placing any of the party at an inconvenience at the granting of the injunction, so BC examined

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Doubt as to the adequacy of damage, Who will be more disadvantaged (balance of risk)

Potential injustice, is damage sufficient

a. irreparable loss: (Hubbard v Pitt: picketing in front of office was irreparable loss or damage, inj granted)

b. losing job with good prospects: (Fellows & Sons v Fischer: no irreparable loss, but rather restraint of trade, no inj because possibility of losing a job with excellent prospects)

c. Public and confidential material: (AG v Guardian Newspaper: injunction would be futile as the information had already been published)

d. Political nature of dispute: wider public interest must be considered in this case

e. Balance evenly weighed: no balance of convenience preservation of the status quo ( Fellows & Sons v Fischer: special factors must be considered when trying to balance the advantage or disadvantages p 183)

f. Preservation of the status quo: nothing changes in there the balance of convenience is even during period immediately preceding the application for inj 10Jackie

B. Criticism of American Cyamid:

Judges ignore side step AC

Contends whether there is a two/three stage test(see comments p184)

i. Three/two stages Inquiry:

Toojays v westerhaven Ltd: inquiry is a two stage test: 1) serious question to be asked; 2) Balance of convenience

Fellows & Son v Fischer: adequacy of damage was treated as a part of the the balance of convenience

ii. Balance of convenience/Balance of justice:

Toojays v westerhaven (p 187): indicates that the balance of convenience does not fully reflect the standard impose by statute...hence it was better framed a balance of justice

iii. Serious question to be tried test (limitations of AC)

Not an inflexible rule and should be considered

Intention that conflict would not be resolved at the injunction stage

Prima facie v serious questions:Jackie 11

Prima facie test, high threshold (lord Diplock contends there us no rule for this test)

Applying the serious question test was no attempt to restrict the court’s discretion from applying the prima facie test (not attempting to fetter the court discretion

Instances where AC is not applicable:

a. Restraining of legal proceedings or abuse of process (Bryanston Finance v DeVires: company could not show bonafide dispute where a shareholdre threatened to wind up company)

b. Unquantifiable losses (Lewis v Heffer: rules in AC was designed to address hardship, loss, misfortune...could not apply in a political situation, not quantifiable)

c. Mandatory Injunctions: Previously only granted where the strong prima facie case was made out (Defalco v Crawley: no injunction should be granted unless undertaking has been granted and the prima facie case was made out. (there has been changes since the American Cyanamid case)

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d. Industrial dispute cases

e. Covenants in restraint of trade (Fellows & Sons v Fischer)

f. Transmission of program where time is important (Cambridge Nutrition v BBC)

Cases involving the final determination of the rights of the parties:

NWL v Wood: case of industrial action where the defendant was asked to cease.

Described the limits within which American Cyanamid must be applied

Indicating that sometimes the prima facie case issue more applicable than the serious question to be tried (it had become statutorized that the court must consider the prospect of success and so the Hl hands were tied and that was more applicable than AC)

Cayne v Global Natural Resources, Cambridge Nutrition v BBC: cases where AC was not applicable p193)

Principles that governs injunction:

Delay

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Acquiescence

Clean hands doctrine (this is never waived)

Test to get injunction lies between the AC and the prima facie

Criticism of prima facie: required too much time and caused the court to delve too deep in matters, Lord Diplock in AC said that conflicts were not to be resolved at this stage)

Criticism of AC: floodgates argument and it would seem that the threshold was reduced or replaced

Limitations and criticism of AC

Criticism:

Application and applicability (Nwl v Wood, Cayne v Global Natural Resource, Cambridge Nutrition v BBC)

3/two stage approach (Toojays v Westerhaven)

Not a new and inflexible rule and should be considered (Series 5 Software)

Limitations:

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The effect is equivalent to a final judgment(Cambridge Nutrition v BBC: must mot be used as straight jacket but rather as a useful guidelines and should not be treated as a statutory provision. Interpret with flexibility)

There is no arguable defense

Where the trial is likely to be delayed

where losses are unquantifiable (Lewis v Heffer: situation was apolitical one and could not be covered by AC)

Abuse of the courts process (bryanston Finances v DeVires (see earlier slide/p190)

Mandatory Interlocutory injunction:

Originally done under the prima facie test (defalco v Crawley)

American Cyanamid (p195): cases may be settle at this stage albeit court not to resolve conflicts (ensure that the court time was not taken up as with the prima facie test)

Injunction orders clear and unambiguous: (Redland Bricks v Morris: cannot be compensated by inj, there will be no relief)

Type of injunction insignificant

Parties interest must be balanced and the defendant must know what he is to do as a matter of fact

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