EQUITABLE REMEDIES

12/07/2012

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 applicants 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-Wilkinsons 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 Goffs 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.

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
o

Interim Injunctions

Theinterlocutoryinjunctionisanequitableremedy,madenecessarybythedelaysbeforeactionscometo
court,designedtoensurethatnoirreparableharmiscausedtotherespectiverightsofthepartiesbefore
thetrialandtopreservetheeffectivenessofanyjudgmentinthefinalaction.
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