Injunctions - Lecture three

• What are injunctions?


  an order of the court which directs a person to refrain from committing or to committing a specific act. It orders the acting out of an act or refraining from an act
• What two cases are important in establishing the general principles of injunctions

  Paton v British Pregnancy Advisory Service Trustees: a husband wanted an injunction to refrain his wife from carrying an abortion. The court stated that an equitable to an injunction would only assist when there is a legal right (equity follows the law)

  • Jaggard v Sawyer: when the applicant delays in bringing a remedy, the courts will not consider that remedy as an injunction is an order of the court that goes against the person (equity acts in personam)
• Discuss the general principles of injunctions

  • injunctions as a remedy will be applied only where common law will not achieve justice between the parties and where damages will not be an adequate remedy
  • the applicant must not delay in seeking the remedy
  • equity follows the law. The applicant must have suffered some real legal harm/right
  • equity will not act in vain (when an individual is seeking an injunction that is meaningless, equity will not intervene)
• Discuss classifying injunctions

  • according to what the injunctions do
  • when you need the injunctions (timing)
  • what the injunction specifically involves
• Discuss what injunctions do (falls under classifying injunctions)

  • prohibitory injunctions - restrictive: require that the defendant refrain from committing the prohibited act
  • mandatory orders - positive requiring the defendant positively to act
• What is the difference between a specific performance and a mandatory order?

  • specific performance: a court order that requires the defendant to complete their obligations under the contract
  • injunction requires no positive act unless, the defendant has, by his own wrongdoing, done something the court requires undone
  • the grounds upon which specific performance will be refused are numerous
  • an order for specific performance is a final order (Argyll)
• Discuss the case of Sky V Petroleum Ltd (1974) in distinguishing between specific performance and a mandatory injunction

  • the applicant had a contract with the defendant for the supply of petrol for ten years
  • after three years, the defendant wanted to terminate the contract and stop carrying out their obligations
  • the applicant went to court seeking an injunction to get the defendant to carry out its obligations (basically an injunction ordering specific performance)
  • defendant was given a mandatory injunction
• When do we need them (classifying injunctions interim injunction)

  • interim injunction: interim injunction can involve an interlocutory injunction. It is a short-term injunction involving urgency. It requires a decision to be made without a hearing
  • it is made by the ex party wthout wformal hear without notifying the other party because if the other party is notified they could do something to dissipate that
  • usually precede an interloctuory injunction
  • first get a interim injunction and then an interloctury injunctioninterlocutory
• When do we need them classfying injunction injunctions (interlocutory injunction)

  • a temp measure granted to maintain the status quo pending the full hearing of the case
• Discuss the final/perpetual injunction (classifying injunctions)

  • finally settles the dispute between the parties
• What do the injunctions specifically involve (third classifying point)

  • without notice injunctions: ex parte, earing takes place in the absence of the person against who the injunction is sought
  • interim relief is sought, which is urgent in nature before rights are dissipated
  • Bloomsbury publishing v Group Newspaper Limited
• Classifying injunctions - what do they specifically involve

  • anonymised orders - prevent the publication of information about the parties (their identities are not disclosed in the judgment)
  • super-injunctions are granted where even the very fact that there were court proceedings may not be disclosed and all court papers are sealed. With super-injunctions, you are not aware that there is even a case. All court proceedings are sealed - prevents the publishing of any details from an ongoing legal case
  • see RJW and SJW v The Guardian newspaper and person or persons unknown (Tradfigura case)
• when do we need anonymised orders?

  • cases involving minors to protect their identity
• What are quia timet (because he fears) injunctions (classifying injunctions what do they specifically involve)

  • issued to prevent a breach of the claimant's rights where the breach is threatened but has not yet occurred
  • must be an immediate threat (more than mere vague apprehension)
  • strong probability that infringement will result in serious harm or damage
  • Vastint Leeds BV v Persons Unkown (2019)
  • Redland Bricks Ltd v Morris (1970)
• Discuss Anton Piller orders (search orders)

  • Anton pillar order : a warrant/court order for the applicant to go into the premises of the defendant to search for something. It does not have to include criminal elements, it may, It concerns the defendant having certain evidence and there is fear that they can get rid of that evidence. It is called an originates from the Anton Pillar case
  • Civil procedure act 1957 section 7 there is statuory provisions for it
• Discuss Mareva injunctions

  • court's order to freeze the defendant's assets
  • they don't want their money
  • applicant hopes the defendant does not run away with their assets
  • origins: Mareva case
  • statutory footing: Senior Care Act 1981
  • it is still relevant today
  • called freezing injunctions now
• Discuss considerations for the grant of search orders

  • extremely strong prima facie case (strong looking case)
  • the damage, potential, or actual, must be very serious for the applicant
  • there must be clear evidence that the defendants have in their possession incriminating documents of things that there is a real possibility that they may destroy such material before any application or inter partes can be made
  • this search order can be made without notice
  • (Anton Pillar 1976) Ch 55, at 62 Per Ormond LJ
• Considerations for freezing orders

  • claimant has a course of action justiciable in England/Wales - can be brought to court in England/Wales
  • claimant has a good arguable case. Standard is higher than interim injunctions.
  • Are there assets in the jurisdiction against which a freezing order can take effect (i.e bank account, shares)
  • a freezing order can still be brought against the court if they are not from the UK. They can be subject to the jurisdiction of the court (assets not in UK)
  • is there a risk that the defendant will dissipate these assets if given the chance
• Possible exceptions to freezing orders

  • ordinary living exception - if the applicant is an individual will they be able to satisfy their daily needs
  • a certain sum will be exempted from the cover of freezing which they can use on expenses
  • legal expenses: when bringing an action against the defendant and you freeze their assets and the defendant wants to respond, they should be able to seek out legal counsel/representation a certain amount of money will be set out for this
  • ordinary course of business:if it is business they should be able to carry out their daily business
• Further freezing considerations

  • Motorola Credit Corporation v Uzan: when the court grants a freezing order, there is a requirement for the disclosure of information on assets
  • JSC BTA Bank v Ablyazov: a refusal to comply with the courts would bring contempt proceedings. This also applies to any third party that interferes with freezing orders
• Conditions for the grant of final injunctions

  • adequacy of damages
  • conduct of the applicant: he who seeks equity must come with clean hands
  • delay and acquiescence: delay with defeat equity
  • acting in vain: will the court be acting in vain if the injunctions is granted
  • hardship: will this bring undue hardship
  • public interest: would it be in the public interest
• What else must you know about final injunctions?

  • orders/injunctions must be clear
• What must final injunctions be?

  • discretionary so special circumstances would be considered
• Considerations for interloctuory applications

  • the balance of convenience indicates the award should be granted
  • the applicant has a good prima facie case
  • there must be a serious question to be resolved
  • there is an undertaking for damages in the event that the applicant does not succeed at trial (he who comes to equity must do equity)
• Discuss the attorney general case v Observer limited

  • concerns a breach of confidentiality
  • a former spy published a memoir containing sensitive information concerning the country, AG wanted to stop this publication from being published in the US/Australia
  • In Australia, AG sought to bring an interlocutory injunction to prevent certain newspapers from publishing a report on the memoir not on the memoir itself but reports
  • it succeeded in the US/Australia
• Discuss interim injunctions

  • will be granted if they're may be substance to the claimant's claim and whether an award of damages in the claimant's favour will provide an adequate remedy
  • if damages are adequate then an interim injunction will not be considered
  • whether it turns out that at trial the injunction ought not to have been granted as the claimant's case failed, the defendant can be compensated for loses by having to comply with the injunction in the meantime
• Discuss the undertaking of damages

  • if a case has not been heard in full and yet you are requiring the defendant to suffer some form of loss
  • the defendant will require an undertaking to pay damages if the claimant's case fails
  • this happened in the AstraZeneca AB v KRKA case
  • AZ had a product working on a popular brand of drug hoping to take the market in the UK< an injunction was bought against it on the basis that it was an infringement of patent rights
  • AZ lost their market share applicant had taken an undertaking of £27million if they had produced the drug