Equitable Remedies

Overview An injunction is a court order compelling the person to whom it is addressed to do or refrain from doing something specified in that order. More commonly, because of the practicality of enforcement, they will restrain a person from doing a particular act. They will, accordingly, be framed in negative terms in most cases.  The Court will always retain a discretion to grant or withhold the order. Considerations of practicality, fairness and equity will be taken into account Injunctions originated with the courts of equity. Accordingly, they are not available as a right. At one time, Injunctions were granted by the Chancery Courts only and could not be granted by the common law courts.  The power to grant injunctions was extended to the common law courts in the middle of the Nineteenth century. In 1877 the systems of common law and equity were merged, so that all courts may dispense common law and equity jurisdiction (including the grant of an injunction) in all proceedings.… Read the rest

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Injunctions without Notice The Courts which exercise equitable jurisdiction (the Circuit Court, the High Court and the Court of Appeal or the Supreme Court on appeal) may, in exceptional cases of necessity, grant an injunction on the application of one party to legal proceedings, without prior notice to the other party. This is referred to as an interim or “ex parte” injunction. There must be exceptional circumstances to that an ex parte injunctions it is strictly necessary. This usually requires that prior notice to the affected parity would undermine the effectiveness of the Injunction. An “ex parte” injunction is strictly provisional and the party affected, will be given an early opportunity to contest it. It is designed to preserve the position, pending the hearing of the interlocutory injunction applicati0on, of which both parties have notice and which in turn, considers the position pending the trial of the actual claim. As with other injunctions, legal proceedings must have issued, which seek to enforce a claim.… Read the rest

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The Pre-Trial Injunction An Injunction may be granted at an early stage in proceedings to preserve the status quo until the full trial. Generally, an injunction is prohibitory i.e. it is worded in the negative. Legislation and Court rules provide that an Injunction may be granted where the Court thinks that is just. Injunctions are equitable remedies.  Their origin derives from the old Courts of Chancery in which discretion and justice was more a factor than in the Courts of law. The granting of an injunction pretrial does not, in general, involve an adjudication on the merits of the dispute.  There is no full hearing.  Generally, the Application is heard on the basis of Affidavit.  Affidavits are written sworn documents.  It is possible that parties may seek to have persons examined orally on their Affidavits. Generally, the Court only considers as to whether there is a fair question to be tried.  … Read the rest

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Mareva Injunction In exceptional cases where a necessity can be shown, the court may make an order (usually) at the commencement of litigation, in order to freeze the assets (or some of the assets) of the defendant. The purpose is to ensure that the assets concerned are not removed from the jurisdiction (outside the control of the court) which may have the effect of frustrating enforcement of any judgment in manner. The order is usually referred to as a Mareva injunction after the first case in which the English Court of Appeal granted such an injunction.  The particular wording of the injunction will determine its scope and effect.  Broadly speaking it will direct and oblige the defendant to preserve and not to dissipate or conceal his assets within the jurisdiction, at all or up to the value of the claim. An Application for a Mareva Injunction may be made to the High Court or Circuit Court. … Read the rest

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General A Specific Performance Order is an order to perform a contract.  As with an Injunction, it is an equitable remedy.  It is the type of remedy originally granted by the Chancery Court.  It is now available in the higher Courts.  However, as with an injunction, an order of specific performance will usually only be granted where damages are not adequate. The classic example is where a property is purchased.  Because properties are unique it is assumed that damages would not be adequate.  Strictly speaking, specific performance applies where a person has not performed its contractual obligations.  The Court has a discretion as to whether or not to grant it. Similar conditions such as those applicable to an Injunction will apply.  These include the hardship on the defendant, delay and inequitable conduct.  In order to obtain specific performance, there must be an existing valid contract.  Specific performance will not be applicable to a gift.  … Read the rest

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Nature of Order An Anton Piller order is a relatively novel type of injunction, which may be granted prior to trial. Its purpose is to preserve evidence. It requires the defendant to permit the claimant, together with a solicitor to attend at the defendant’s premises in order to inspect, and if necessary take copies of documents mentioned in the order. The orders are often granted in the context of claims of infringement of intellectual property rights. The purpose of an Anton Piller order is to prevent the defendant from destroying evidence in his possession which might support the claimant’s claim. The order may require that the defendant provides discovery of documents or answers interrogatories. The application for an order is made on a one-sided  /ex parte application. For obvious reasons,  it is usually necessary that the defendant should not have prior warning. Anton Piller orders developed in the 1970s and are named after a 1976 Court of Appeal case in England.… Read the rest

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General Tracing is an equitable remedy by which a claimant may claim assets which have become mixed with those of another, or have changed their original form.  Tracing is effectively a proprietary claim that the assets held belong to the claimant. Where assets have not become mixed, but have been merely substituted and are held by another, common law tracing is available. Common law tracing is available while the asset retains its identity.  Tracing in equity is more flexible and allows for a change in form of the asset. For example, when funds are mixed, the courts may allow tracing on an equitable basis. The equitable remedy is not available as of right or is at the court’s discretion. There are limitations on the exercise of the discretion, that for example, it will not be available if a  third party’s interest are thereby unreasonably affected. Tracing allows for identification of the one asset and its proceeds with another asset.… Read the rest

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Nature Rectification is an order for the correction of a document. Courts cannot alter the terms of the agreement. However, where an agreement has not been correctly incorporated in a document the document may be corrected. There is a heavy burden on a person who seeks to prove rectification of a written document. There is a strong presumption that the document is final and correct. Rectification may be raised as a defence where it is sought to enforce a document. The essence of rectification is that the parties agree on terms and mistakenly omit or they are mistakenly recorded in the agreement then rectification will be available. If there was a common intention to include or exclude a particular term until the moment the contract was finalised a document may be rectified even if there was no prior verbal contract including the point. If there was a prior common intention that a particular term be included a document may be rectified to provide for its inclusion.… Read the rest

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Meanings of Rescission Rescission has a number of legal meanings.  Where one person has committed a fundamental breach of contract the innocent party has the option to treat the contract as terminated and to claim for damages. Alternatively, he may elect to enforce it (and in some cases also claim for damages.  In this sense rescission is the act of the person who was party to the contract. The contract itself may provide that one or other party can rescind in specified circumstances. In the present sense rescission is a remedy or relief given by Court Order to set aside transactions.  It applies to contracts, deeds and other documents.  Rescission in this sense is an equitable remedy.  This means that as with Injunctions, specific performance and other equitable remedies considerations of justice and equity come into play.  In addition, the relief may be lost on other bases such as hardship, acquiescence, delay, the conduct of the party, etc.… Read the rest

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General A declaration is an order stating the rights of the parties. It does not compensate or require any person to do anything. It defines in a conclusive way the rights of the parties. A declaration may be granted as part in legal proceedings as a single remedy or as part of a number of related remedies without any other appropriate relief. A declaration is common in relation to matters affecting the State. The State must comply with laws and a Declaratory Order is generally sufficient. Since the amendment to the Rule of the Superior Courts in 1986, a declaration may be made in an application for a judicial review of the decision of a public body. An Order for declaratory relief is not subject to the all the usual equitable defences. It is closer to a common law claim Rationale It is not possible to litigate a hypothetical matter that is not in dispute.… Read the rest

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