injunctions

Injunctions are granted to enforce a legal or equitable right of the applicant claimant. The right may be one which exists under a contract, the general law or be statutory right. Grants of injunctions presuppose the existence of such a right.  Injunctions are court orders requiring a person to do or refrain from doing acts specified in the order itself. So, injunctions may impose positive or negative obligations on the respondent, so as to prevent damage continuing to be suffered by the applicant or prevent damage anticipated to be suffered in the future. Court orders such as these are discretionary remedies, in that they are not available as of right to an applicant. It is for the judge to decide after considering a series of factors whether its discretion should be exercised in favour of the applicant after considering the balance of convenience. Injunctions remain in force until they are discharged by the Court, even when the order should not have been made in the first place.

Basis and Nature of Injunctions

Courts in England have an inherent power to make injunctions, as well as various statutory jurisdictions where it is just and convenient to do so. Orders may be made on conditions as the Court thinks fit, or unconditionally. Just and convenient is a reference to established legal principles, which require the threatened or actual invasion of a legal or equitable right of the claimant which is enforceable by an English Court, or where the respondent threatens to behave unconscionably.

Injunctions themselves are not legal proceedings. They are a remedy. As with all remedies, the claimant requires a substantive legal right (known as a 'cause of action') in order to obtain an injunction. This means that an injunction is not an end in itself - the claimant must prove to the satisfaction of the court that it has a good legal claim which exists or is threatened in respect to a legal or equitable legal right, and the circumstances of the case justify the making of the order granting injunctive relief. One of the few exceptions to the rule is to restrain legal proceedings in England or in a foreign country, by the grant of anti-suit injunctions. Where interim relief is granted, the proceedings will proceed and the claimant will be required to establish its case.

Respondents

In the vast majority of circumstances, injunctions are made against named individuals who are parties to the application. The court has jurisdiction to make orders contra mundum (against the entire world), or against persons unknown of the circumstances of the case justifies it. Injunctions may also be made against representatives of a larger group, such as a union or unincorporated association.

In order to a bound by an injunction, the person must be served with it. Suppose a person comes to learn of the order and the conduct prohibited by it. The person is required to stop doing any act which would infringe the terms of the injunction or risk being in contempt of court.

Entitlement to Injunctions

Injunctions are discretionary remedies. Even if all of the criterion for to obtain injunctive relief are satisfied, it remains a matter of discretion on the part of the Court whether or not to grant the relief sought. The court is under no obligation whatsoever to grant injunctive relief. Relief is unlikely to be granted where the applicant/claimant has acted unfairly itself, the interference with the relevant right of the claimant is trivial, where damages are seen to be an adequate remedy for the claimant, where the claimant has unnecessarily delayed making the application (laches), or there is an ulterior motive for the relief. In addition, where there is no likelihood that the wrongful conduct will be repeated or the wrongdoing has stopped injunctive relief will not be available. A risk of recurring damage to the claimant is required to be shown.

Courts have power to grant an award for damages in lieu where an injunction is not granted under the Senior Courts Act even where a claim for damages is not included in a statement of case.

For example, if the loss or damage that would be sustained by the claimant would be satisfactorily compensated by an award of money, then it is said that damages are an adequate remedy, and an injunction will not be available unless the case presents exceptional circumstances. Injunctions may be granted on an interim or perpetual basis.

Quia timet injunctions are granted in circumstances where the legal rights of the claimant are in threat of being breached, but have not been breached as at the time of the order. Most injunctions are granted after the wrongdoing has taken place.

Instances of injunctions in commercial law include restraint of:

Intellectual Property

1. passing off;
2. infringement of trademarks, patents and copyright;
3. groundless threats for alleged infringement of registered intellectual property rights;
4. opposition by a respondent from resisting an order to allow the claimant to enter onto premises to search for and collect infringing material and documentation evidencing infringement;

Contract

• an employee, competitor or a vendor of a business from breaching the terms of a restrictive covenant;
• disclosure of a confidential information and trade secrets;
• interference with contractual rights or an inducement to breach a contract;
• misuse of confidential ideas, whether they wee communicated orally or in writing in the first instance;
• a fiduciary (such as a director, employee, trustee) from committing a breach of trust or contrary to the terms of engagement;
• enforcing the terms of an exclusive licence;
• disposing of assets pending the trial;

Company law

• presentation of a petition for the winding up of a company (whether or not a statutory demand has been issued);
• a company from acting ultra vires its powers;

Litigation

• a company from pursuing proceedings outside the jurisdiction of English Courts in breach of a jurisdiction clause;
• conduct of proceedings within the jurisdiction where proceedings are on foot in a foreign country;
• use of without prejudice or documents protected by legal professional privilege in a legal action;

Property

• trespass to goods;
• trespass to land by persons or by structures overhanging the land;
• constructing a building in breach of a restrictive covenant;
• breach of a licence to occupy premises;
• interference with a right to light;

Defamation

• publication of libellous (or defamatory) material, 
• publication of material which would prejudice a fair trial;
• unlawful statements which damage a business.

At the hearing, the claimant must prove that a legal right - whether it is property, a right or an interest - has been contravened or there is a real risk that a legal right will be infringed in the future by the defendant. In instances were special damage must be proven, such as slander, that damage must also be made out.

Types of Injunctions

Interim and Perpetual

An interim (or preliminary or interlocutory) injunction is a provisional order and may be granted to maintain the status quo between the parties leading up to the trial of the dispute. Interim injunctions may be made at any time, such as to assist the enforcement of a judgment (such as a post-judgment freezing order), and in the case of without notice applications, in absence of assessing the evidence and submissions of both of the parties. Interim relief may be granted in terms which would not be available at the trial, and indeed the terms sought need not appear in a statement of case (ie the particulars of claim). A grant must be incidental to or dependent on the enforcement of a substantive right, which as stated above, is the cause of action in the case.

At the trial, the parties are heard and the rights of the parties in the litigation are finally and conclusively determined. Perpetual injunctions are usually ordered after the trial after hearing the parties on the merits of the case.

Final Injunctions

When the parties rights are finally determined, injunctions may be awarded 'in perpetuity'; this is a reference to the finality to which the parties legal rights as opposed to temporary effect. If a claimant seeks a final injunction, it must seek that relief in the particulars of claim (or claim form).

Mandatory and Prohibitive Injunctions

Prohibitive injunctions are the most common form of injunction. They require the respondent/defendant to refrain from doing specified acts. Injunctions that are prohibitory in nature to require the defendant to stop some wrongful conduct.

Mandatory injunctions on the other hand require the respondent/defendant to take positive steps (possibly to reverse the effects of some wrongful act or do something to preserve property pending the trial) to prevent a claimant suffering damage. Courts are more reluctant to grant mandatory injunctions than prohibitive injunctions, because the respondent is required to positively do some specified act, as opposed to refraining from doing specified acts. For example, there is inherent difficulties determining whether a business is being run in accordance with the terms of a court's order, particularly in the face of the consequences of contempt of court for breach of the court order. mandatory injunctions are more likely to be granted where some defined result, as opposed to some act which is less clearly defined or precise.

Other than in very exceptional and unusual circumstances, mandatory injunctions will not be granted where the order would:

1. require constant supervision of the Court;
2. involve great expense to enforce in the event of a breach;
3. the acts which the respondent is required to do are not capable of clear expression, so that the respondent knows exactly what it is it has to do to obey the order; or
4. unjustly enrich the claimant.

Balance of Convenience

Courts maintain a discretion to award injunctions. Simply because an injunction is not awarded does not mean that a defendant is relieved of liability, as the defendant will remain liable in damages provided the losses suffered are proved in the litigation.

Failures to Comply

When a defendant does not comply or disobeys the terms of an injunction, the sanction of contempt of court. Injunctions must be clearly expressed.