Injunction
An injunction is an order of the court restraining a person from doing some act.
An injunction is an equitable remedy
Case example: In the case of Metropolitan Electric Supply Company v Ginder [1901], the
defendant entered into an agreement with the claimants to take the whole of the electric energy
required for his premises from the claimants for a period of not less than five years. When the
defendant breached this agreement, the claimants sought an injunction.
Types of injunctions:
Mandatory - where the order of the court is for the party to do something positive. In the
case of RoDa Drilling Co. v. Siegal the court granted a preliminary mandatory injunction
ordering the transfer of record title.
Prohibitory – where the order is for the party to refrain from doing something. It prevents
the breach of a legal or equitable right.
Quia Timet - obtained where a wrong is anticipated. It is used to prevent potential harm
before it occurs.
Interlocutory / Preliminary Injunction: This is a temporary injunction that is issued before
the final resolution of the case. It is used to maintain the status quo and prevent further
harm until the case can be fully heard. An example of an interlocutory injunction case is
the Mareva injunction which was named after the case Mareva Compania Naviera SA v
International Bulkcarriers. It is a type of court order that freezes the assets of a defendant
to prevent them from being taken abroad. The Mareva injunction was introduced to
prevent defendants, particularly foreign companies, from removing their assets from the
court’s jurisdiction before trial, which would leave the plaintiff with nothing more than
an 'empty judgment’. The Mareva injunction is simply a measure to ensure that the
defendant cannot evade a possible adverse judgment by transferring their assets out of
reach.
Ex parte injunction – is issued without notifying the defendant, meaning the defendant is
neither present nor represented during the proceedings. It is used in urgent situations
where immediate action is necessary to prevent irreparable harm. They aim to preserve
the status quo until a full hearing can take place. Anton Pillar injunction is an ex parte
injunction which is named after the Anton Piller KG v Manufacturing Processes Limited
case. Anton pillar order is a court order that provides the right to search premises and
seize evidence without prior warning. It is used to prevent the destruction of relevant
evidence.
Injunctions may also vary as to the relief that they offer. They can be:
Perpetual– the remedy is a final remedy. Granted only where damages in any case would
be an inadequate remedy.
Interim (known as interlocutory) – these are granted in advance of any trial of the issue to
retain the status quo. It is also granted where the claimant might suffer irreparable harm.
The grounds for injunction are:
Irreparable Harm: The plaintiff must demonstrate that they are likely to suffer irreparable
harm without the injunction. In the case of eBay Inc. v. MercExchange, 547 U.S. 388
(2006), the Supreme Court of the United States announced a test for injunctive relief that
required, among other things, that the plaintiff prove “that it has suffered an irreparable
injury”.
Public interest: The injunction must be in the public interest. In the case of Deacons v
Bridge [1984] AC 705 - a clause in a solicitor’s contract restraining him from practising
in Hong Kong for a period of five years was upheld as in the public interest.
Balance of Convenience: The balance of convenience must favor granting the injunction,
i.e. the benefit of the injunction to the plaintiff outweighs the burden on the defendant. In
the case of Erica Francis-Griffiths v Patricia Griffiths [2016] JMSC Civ. 68, The court
had to consider the balance of convenience in deciding whether to grant the interim relief
sought by the claimant.
Likelihood of Success on the Merits: the plaintiff may need to demonstrate a likelihood
of success in the eventual trial when seeking a preliminary injunction.
Inadequacy of Damages: Damages would not provide an adequate remedy in case of
success i.e. monetary award would not be sufficient to make the plaintiff whole.