EQUITABLE REMEDIES 07/12/2012 12:54

INJUCTIONS - INTRODUCTION

An injunction is an equitable remedy that will be awarded on an interim (formerly interlocutory) or a permanent

basis, either in a mandatory or prohibitory form.

It is necessary that no common law remedy would be sufficient in the circumstances; the applicant must come to

equity with clean hands; there must not be delay on the applicant’s part; some right of the applicant must be

affected; and the respondent must not suffer undue harm as a result of the injunction.

It is at the discretion of the court to make an order to either party to litigation, or by way of final judgment, to

take some action or to refrain from some action.

Section 37(1) of the Supreme Court Act 1981 provides that:

“The High Court may by order (whether interlocutory or final) grant an injunction… in all cases

in which it appears to the court to be just and convenient to do so.”

A court will sometimes award damages in lieu of an injunction. In that case, there are four probanda that must

be satisfied: (Shelfer v City of London Electric Lighting Co. per AL Smith LJ):

The harm suffered by the applicant must have been comparatively slight;

The harm must be capable of being quantified in monetary terms;

The harm suffered must be such that it can be compensated adequately by payment of damages;

and,

It must have been oppressive to the respondent to have granted the injunction sought.

INJUNCTIONS – GENERAL PRINCIPLES

Damages, or other common law remedies, must not be an adequate remedy.

The Applicant must come to equity with clean hands

o This principle finds contemporary basis in Lord Browne-Wilkinson’s speech in

Westdeutsche Landesbank Girozentrale v Islington BC where he refers to the trust

relationship as being built on the conscience of the trustee in dealing with the trust

property.

o Lord Goff’s speech in Tinsley v Milligan, “…once it comes to the attention of a court of

equity that the claimant has not come to the court with clean hands, the court will refuse

to assist the claimant, even though the claimant can prima facie establish his claim

without recourse to the underlying fraudulent or illegal purpose.”

The Applicant must not delay in seeking the remedy

o Rooted in the equitable maxim ‘delay defeats equity’.

o Jaggard v Sawyer – “If the applicant delays proceedings until it is no longer possible for

him to obtain an injunction, he destroys his own bargaining position and devalues his

right.” – Lord Millett.

Equity will not act in vain

Some right of the applicant must be affected

The injunction must not cause undue hardship to the Respondent

Interim Injunctions

The interlocutory injunction is an equitable remedy, made necessary by the delays before actions come to

court, designed to ensure that no irreparable harm is caused to the respective rights of the parties before

the trial and to preserve the effectiveness of any judgment in the final action.

AMERICAN CYANAMID V ETHICON

Diplock “The court must weigh one need against the other and decide where the “balance of

convenience” lies”

o The balance of convenience indicates the grant of an award

o The applicant shows a strong prima facie case

o

SEARCH ORDERS (ex parte) application

Sometimes used as civil search warrants

Enable applicant to enter premises to inspect and take evidence

Statutory footing in s7 of the Civil Procedure Act 1997

Danger in that the Judge must rely exclusively on the word of the applicant

Anton Piller KG v Manufacturing Prrocesses Ltd

o Extremely strong prima facie case

o Damage or potential for damage must be very serious for the applicant

o Clear evidence that the defendants have in their possession incriminating

documents or things, and there is a real possibility they may destroy such

material before an inter partes application may be made.

Coca Cola v Gilbey

o Denning adds the order must do no real harm to the defendant, though

risk of exposure to violence is not a defence.

Lock International v Beswick

o Unscrupulous applicant used order to commercially crush the defendant

– though judge was unaware.

Columbia Picture Industries v Robinson

o Must be a full disclosure of facts – to not do so would be a breach of

natural justice

AP CONDITIONS are more stringent than those laid down in CYANAMID –

reflects the concern of courts to protect the respondent from an abuse of process.

INTERLOCUTORY (INTERIM) INJUNCTIONS

AMERICAN CYANAMID V ETHICON

o Diplock “The court must weigh one need against the other and decide where the “balance of

convenience” lies”

The balance of convenience indicates the grant of an award

The applicant shows a strong prima facie case

There is a serious question to be resolved at trial

Undertaking for damages in the event that the applicant does not succeed at trial

Claim will frequently never come to trial as litigation is expensive and the respondent party may

feel sufficiently discourage to drop or settle the case

Partly limited by Art 10 of the HRA 1998 – DOUGLAS AND ZETA JONES V HELLO

HUBBARD V PITT

o Special factors such as right to free speech and demonstrate con

FREEZING INJUNCTION

Mareva Compania v International Bulk Carriers SA

o Slightly more stringent that the search order

Requires a ‘good arguable case’

Applicant must satisfy court that there are assets within the

jurisdiction

There is a real risk of dissipation of those of those assets which

would make a judgment nugatory

RE BCCI