Injunctions Mandatory – compels a person to act in a particular way - PowerPoint Presentation

1. InjunctionsMandatory – compels a person to act in a particular wayProhibitory – restrains a person from acting in a particular wayFinal – an injunction which is granted as a remedy at the conclusion of civil proceedingsInterim or interlocutory – during proceedings

2. Jurisdiction to Grants23(5) of the Supreme Court of Judicature Act Chap 4:01: an inunction granted where “just and convenient” and either unconditionally or upon such terms and conditions as are justCPR 17.1 – injunctions permissible with a menu of possible orders CPR 17.1 (3)- but note: the listing is not exhaustive so you can get what you needJudicial Review Act- section 8 gives an express power to grant

3. ProcedureCPR 17 sets out procedureCan be made at any time 17.2 (1)If made before claim: must be necessary to do soMust give an undertaking to issue a claim: 17.2 (3)

4. With or without noticeVery high threshold to justify ex parteNational Commercial Bank Jamaica Ltd. v Olint Corporation Ltd [2009] I WLR 1405 .Lord Hoffman at [13] ..a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Pillar order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act.

5. More procedural issuesCertificate of urgency. No rule requiring this, but has emerged in practice. You could it seems simply write to the Registrar Similarly, if you are defending, you can write to the registrar to advise of a pending dispute which may come and to advise that counsel had been retained and is available at short notice to attend on an opposed ex parte basis

6. Practice outside work hoursCall Registrar: Madam Registrar Bansie- Sookhai - 389-7827Find out who is duty Registrar and Judge and advise when you will be readyNo filing: you lodge papers with Registrar who takes into custodyYou give an undertaking to file next working dayHave electronic copy of order in email or flash drive in case judge modifiesHave Court of Appeal on stand by

7. Other matters: Undertaking in damages Draft orderEnough copies to put a penal clause and for serviceNeed penal clause if you need to enforce contempt proceedings

8. American Cyanamid criteriaserious issue to be tried Adequacy of damages Is the defendant adequately protected by the undertaking The balance of convenience maintenance of the status quo merits of the parties’ cases (Series 5 Software v Clarke [1996] 1 All ER 853)

9. Jetpak/East Coast:Jetpak v BWIA 55 WIR 362: I would consider the rule that an injunction ought never to be granted if damages can provide an adequate remedy to be one which is too narrow to be applicable in every case. It is more obviously so if by ‘damages’ is meant the damages which are legally recoverable in the action, and if by ‘adequate’ is meant quantifiableEast Coast Drilling 58 WIR 351: A more modern approach, which was adopted in Jet Pak Services Ltd v BWIA International Airways Ltd (1998) 55 WIR 362, is to pose the question: where does the greater risk of injustice lie, in granting or in refusing the injunction? If I may venture respectfully to suggest it, one criticism of this phrasing is that it does not make it clear that one has to assess and compare not only the quantum of the risk that injustice may occur, but also the extent of the injustice that may occur. The risk of injustice may be greater if an injunction is granted when the case for the plaintiff is not a strong one, but the consequences of refusing the injunction in such a case may be far more disastrous for the plaintiff than the consequences to the defendant of wrongly granting it.

10. Olint test- [17] In practice, however, it is often hard to tell whether either damages or the cross-undertaking will be an adequate remedy and the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whatever course seems likely to cause the least irremediable prejudice to one party or the other.

11. Appeal of injunctionNovartis test [2014] 1 WLR 1264The court must be satisfied that the appeal has a real prospect of success. (2) If so, not usually be useful to attempt to form a view as to how much stronger the prospects of appeal are, or to attempt to give weight to that view in assessing the balance of convenience. t does not follow automatically from the fact that an interim injunction has or would have been granted pre-trial that an injunction pending appeal should be granted.

12. Novartis continued4. must assess all the relevant circumstances following judgment, including the period of time before any appeal is likely to be heard and the balance of hardship to each party if an injunction is refused or granted. 5. not limited to the case where its refusal would render an appeal nugatory. Such a case merely represents the extreme end of a spectrum of possible factual situations in which the injustice to one side is balanced against the injustice to the other.6. As in the case of the stay of a permanent injunction which would otherwise be granted to a successful claimant, the court should endeavour to arrange matters so that the Court of Appeal is best able to do justice between the parties once the appeal has been heard.

13. Exceptions to American CyanamidFinal disposal of disputeno arguable defenceDefamation - (Bonnard v Perryman [1891] 2 Ch 269) (now overruled domestically –see CA in Rajkumar mandatory interim injunctions – higher threshold

14. Special casesState Liablity and Proceedings – no injunctions against StatePublic law - judicial review is not a civil proceeding for the purpose of the State Liability and Proceedings Act. JR Act gives express powerConstitutional motions – conservatory orders- established in Bansraj, now expanded it seems.

15. Bars and defences Delay or acquiescence exceptional hardshipInequitable behaviour by the applicantNo practical purpose Personal services – employment cases

16. Order must be precise forbidden from committing the act whether by himself or by instructing or encouraging or permitting any other personwhether acting on his own or through his servants and/or agent, heirs or assigns, or howsoever otherwise“Until trial or further order..” - always use a clear cut off from when injunction will lapse

17. Penal in nature Arlidge, Eady & Smith on Contempt, 3rd Ed., 2005 states (at 12-48) that the rules governing the construction of undertakings and orders are analogous to those which govern the interpretation of penal statutes.Bennion, Statutory Interpretation, 2008 (5th Ed): “It is a principle of legal policy that a person should not be penalised except under clear law...The court...should strive to avoid adopting a construction which penalises a person where the legislator’s intention to do so is doubtful”.

18. Penal Clause CPR 53.3NOTICE: If you fail to comply with the terms of this order you will be in contempt of court and may be liable to be imprisoned or to have your assets confiscated.”, or in the case of an order served on a body corporate in the following terms: “NOTICE: If you fail to comply with the terms of this order you will be in contempt of court and may be liable to have your assets confiscated.”;