Civil Procedure II: Ekin Kasim Ragu

INJUNCTIONS
CLASSIFICATIONS
DEFINITION
Injunctions can be classified as:
An injunction is basically adjudicial order
a) Prohibitory
- granted at the discretion of the High Court
b) Mandatory
- to prevent a party from doing an act
c) Perpetual
- or to compel a party to do an act
d) Interlocutory, interim or temporary
e) Quia timet
f) Special forms of injunctions
SECTION 50 Specific Relief Act 1950 provides that:

- The granting of preventive relief is at the discretion of

the court
- The relief may be by way of temporary or perpetual
injunction
SECTION 51 SRA 1950 provides for:
a) Temporary injunctions -
 These are injunctions which are to continue for a
specified time or until further order of the court.
 These may be granted at any stage of the suit
 Are regulated by ORDER 29 RULE 1 RHC 1980
b) Perpetual injunctions –
 These can only be granted by decree made at
the hearing and upon merits of the case.
PROHIBITORY
- A prohibitory injunction is an order to restrain a party
from doing an act
- SECTION 52 SRA 1950 provides that a perpetual
prohibitory injunction may be granted:
i. To prevent the breach of an obligation which
arises from contract (negative covenant) or
ii. When defendant invades plaintiff’s right. For ex.
Where
a) Defendant is the trustee of property for
plaintiff
b) There is no standard to assess damage
caused by the invasion
c) The pecuniary compensation is
inadequate or cannot be obtained and

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d) It is necessary to prevent multiple
proceedings.
MANDATORY
- A mandatory injunction orders a party to do a certain
act
- SECTION 53 SRA 1950 provides that
 A court may grant a mandatory injunction to
prevent the breach of an obligation and compel
the performance of the required act
CASE: Gibb & Co v Malaysia Building Society
Facts of the case:
- In this case, plaintiff changed solicitors in a dispute
with defendant (plaintiff’s former solicitors)
- Plaintiff issued a writ and sought an interlocutory
order for defendant to hand over the documents
- The Federal Court granted an interlocutory mandatory
order.
The Federal Court stated that:
i. The court has discretion to grant an interlocutory
mandatory injunction before the trial in exceptional
and extremely rare cases only.
ii. Before granting the order, the court will consider the
position of the parties and also the questions of
hardship and inconvenience.
iii. If there is plainly no defence but only to delay, then
the interlocutory mandatory injunction may be
granted
PERPETUAL
- A perpetual injunction is a FINAL injunction
 where an order is made at the end of the
hearing
 and binds the parties
- The court will consider whether to grant this injunction
as part of the relief and damage claimed by plaintiff
INTERLOCUTORY, INTERIM OR TEMPORARY : ORDER 29 RHC
1980
1. A temporary injunction is granted for a specified
period at any stage of the proceedings. The
procedures under Order 29 Rule 1 must be followed.
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2. An interim injunction is usually granted in URGENT NO INJUNCTIONS AGAINST THE GOVERNMENT

CASES and is valid for only 2 weeks. The Procedure
SECTION 29(2) Government Proceedings Act 1956
under Order 29 Rule 1 must be followed.
- No injunction, directly or indirectly can be granted
3. An interlocutory injunction is granted before or during
against the government or any statutory body
the trial where the CASE IS NOT URGENT.
 it is valid until the end of the trial where a
perpetual/ final injunction may then be given
 the procedures under Order 29 Rule 1 must be INTERLOCUTORY INJUNCTION
followed.
PROCEDURE
QUIA TIMET
Case is not urgent [Order 29 Rule 1(3)]
- A ‘quia timet’ injunction may be granted where
1. Plaintiff must first issue the WRIT or ORIGINATING
plaintiff’s right is threatened but not yet infringed.
- Example: SUMMONS before applying for the interlocutory
 to prevent an injury occurring or a threatened injunction
2. Then, plaintiff must apply by INTER PARTE SUMMONS
breach which has not yet been infringed
supported by an AFFIDAVIT
(anticipatory breach)
- plaintiff must show that a substantial damage will be Case is urgent [Order 29 Rule 1(2)]
suffered.
1. It must be certified by plaintiff’s solicitor that the case
SPECIAL FORMS OF INJUNCTIONS is urgent
2. Application is made by EX- PARTE SUMMONS
i. Mareva injunction
ii. Anton Piller injunction supported by an AFFIDAVIT
iii. Eringford injunction
Contents of affidavit [Order 29 Rule 1 (2A)
- Which is a stay order of the judgement until the
appeal is heard The affidavit must contain a clear and concise statement of:

a) Facts giving rise to the claim against defendant

b) Facts giving rise to the claim fo the interlocutory relief
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c) Facts justifying the application ex- parte d) Plaintiff must undertake as to damages.
d) Answers by the defendant to plaintiff’s claim or
interlocutory relief
e) Facts known to plaintiff which might lead te court not
SERIOUS QUESTION TO BE TRIED
to grant relief ex-parte
f) Whether any previous similar ex- parte application has In Keet Gerald Francis John v Mohd Noor b Abdullah, the
been made and if so any order given Court of Appeal (Gopal Sri Ram JCA) said that:
g) The precise relief sought.
- To decide whether there is a serious question to be
Matters to be considered by the court:
tried, the court looks at the totality of facts presented
1. The court has discretion whether to grant an and decides whether there are bona fide issues in the
interlocutory injunction and will consider various affidavit which are serious enough to merit a trial.
matters to prevent the abuse of Order 29.

2. The principle in granting interim/interlocutory APPLICATION MUST BE PROMPT

injunctions are laind down by the House of Lords in
American Cyanamid Co v Ethicon Ltd and followed 1. Delay ‘may be calculated to throw considerable doubt
in Malaysian cases ex: Mohammed Zainuddin v Yap upon the reality of his alleged injury’
Chee Seng as: Lord Chelmsford LC in Ware v Regent’s Canal Co
a) Whether there is a serious question to be
2. In Evercrisp Snack Products v Sweeties Food
tried. The court will look at it prima facie. If
Industries, the court did not grant the interlocutory
there is no serious question to be tried then
injunction because plaintiff had delayed his
no injunction will be granted.
b) Whether damages are sufficient to application and gave no satisfactory explanation.
compensate plaintiff. If damages are
3. In Haji Wan Habib v Datuk Patinggi Haji Abdul Taib
sufficient to compensate plaintiff, then no
Mahmud, the Supreme Court said that an injunction is
injunction will be granted
only a discretionary remedy and should not be
c) Balance of hardship: if, by not granting the
available to those who sleep on their rights.
injuction, plaintiff suffers more hardship than
defendant, then an injunction will be granted.
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FORM OF ORDER AND DURATION

1. An order for an interlocutory injunction must be in

FORM 58
[Order 29 Rule 1(4)]
2. The duration of an interim injunction obtained on an
GROUNDS FOR DISCHARGE
ex-parte application is 2 weeks from the date on which
it is granted Defendant can apply to set aside the injunction on ground of
[Order 29 Rule 1(2B)]
3. To extend plaintiff’s ex-parte injunction, plaintiff has to a) No serious question to be tried or
show urgency b) Balance of hardship is in defendant’s favour or
4. If plaintiff applies by inter parte summons, then it c) Assessment of damages : damages can be assessed
must be served on defendant or plaintiff cannot pay damages if defendant wins or
d) Suppression of material facts.

UNDERTAKING AS TO DAMAGES
DEFAMATIONS ACTIONS
CASE: Keet Gerald Francis John v Mohd Noor b Abdullah
- Plaintiff must make an undertaking as to damages for
the interim injunction against defendant should
plaintiff lose the case.
- However, if the injustice to plaintiff is so manifest, the
court may dispense with the undertaking as to
damages.
FAILURE TO COMPLY
1. In defamation actions, the court also has to use the
principles in Keet Gerald Francis John to decide
whether an interim injunction shoud be given
2. If, on the facts, it shows that defendant’s statement
may amount to defamation which would cause
hardship to plaintiff’s reputation, then an injunction
will be given
Woodward v Hutchins

- If defendant fails to comply with the interlocutory

injunction, then it amounts to contempt of court. PRESERVATION OF PROPERTY

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1. The court may, if it thinks just, make an order for the SUPPRESSION OF MATERIAL FACTS
detention, preservation or inspection of any property
- If plaintiff suppresses any material facts, then the
which is the subject matter of teh action and authorise
court has the discretion not to grant the injunction
any person to enter that property
Noor Jahan v Md Yusof
[Order 29 Rule 2]

2. However, this order [Order 29 Rule 2] will not be made

if defendant can show proof of possesion
Niino & Co Ltd v Kow Lup Kai

EX -PARTE APPLICATION TO STOP MEETINGS

1. An ex-parte application cannot be used to stop the

holding or progress of a meeting of a body corporate,
a society, an association, a union, an organisation, a
club, or a body of person
[Order 29 Rule 1(2C)]

2. It must be inter parte application

DISSOLUTION OF AN INTERLOCUTORY INJUCTION

- The main action is not affected by res judicata or the

issue of estoppel
Cheng Hang Guan & Ors v Perumahan Farlim
(Penang) Sdn Bhd