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. The Circuit Court, the High Court and the Supreme Court (on appeal) may grant injunctions. The District Court had has limited jurisdiction and does not have the power to grant injunctions at present.
Breach of the terms of an Injunction constitutes contempt of Court. A person can be committed to jail for contempt until he agrees to comply. He can be committed to prison for non-compliance by way of punishment. See our guides in relation to the enforcement of the court orders and contempt of court.
Types of Injunction
An injunction may be granted prior to the trial, and indeed from the outset of proceedings, in order to preserve the status quo. This is a pre-trial or interlocutory Injunction. It will only be granted where absolutely necessary, in order to preserve the position pending trial. It may be granted on a motion heard on foot of notice as short as four days.
In urgent cases, the application for an injunction will be made by way in a one-sided application for a temporary injunction. This may be necessary where prior notice would jeopardise the applicant’s position. Where a temporary injunction is granted without notice, the person affected will be given an opportunity at a very early event to make representations in relation to its release.
A final or perpetual Injunction may be sought in Court proceedings to vindicate a particular right or prevent a continued or apprehended breach of a right in future. The claimant must establish a sufficient interest. Injunctions are most commonly founded on property rights. However, they may be granted in some cases, in order to restrain civil wrongs and breaches of contract.
Inadequacy of Damages
A person who succeeds in a legal action for breach of contract or for a civil wrong is entitled to damages or compensation. It is said that he is entitled to it as of right. In contrast, there is no entitlement to an injunction as of right. A court will consider whether it is fair and reasonable in the circumstances.
A Court will generally not grant an Injunction where damages or compensation would be adequate. An order to pay money is more easily enforced and does not require ongoing monitoring by the Court. An injury or damage to property can be usually compensated by money; an award of damages will suffice.
In contrast, where there is a nuisance or ongoing interference with the enjoyment of land or a right, an injunction will be appropriate. Damages may not be adequate or sufficient. In some cases, an Injunction may be granted as an alternative to or may be in addition to compensatory damages.
Where an Injunction is sought before trial in order to preserve the position, it may be granted where damages in the ultimate action would be inadequate. This may arise where some permanent loss e.g. the closure of a business would ensue unless specific action is taken to assert a right or terminate a wrong immediately.
The Court will have regard to the impact of an injunction on both the claimant and the respondent/defendant. The Court does not generally take account of the effect of the granting of the injunction on third parties and the public. However, in some cases, the impact on the public is considered.
The courts look at the “balance of convenience”. If, for example, the injury to the claimant is small and it can be compensated in money, but an injunction would be oppressive to the defendant, an injunction is likely to be refused. Correspondingly if the likely injury to the plaintiff is significant and the inconvenience to the defendant is minimal, then an injunction is more likely.
There is a principle that a person who seeks an equitable right or remedy must come “with clean hands”. If the defendant has acted in a high-handed manner or seeks to take unfair advantage, an injunction may be denied, where it might otherwise have been granted. more appropriate.
Therefore if a person has engaged in sharp practice or in behaviour which the Court does not approve of, an injunction which might otherwise have been granted, may be refused. There must be some connection between the conduct and the matter in dispute.
Types of Cases
Traditionally, injunctions were granted to enforce property rights, Examples include injunctions preventing trespass, preventing the breach of intellectual property rights or stopping an employee breaching confidence. If, for example, the respondents have been deliberately trespassing such as by undertaking a sit-in, an injunction is likely to be granted, compelling them to discontinue the trespass.
Modern property rights, such as intellectual property rights are commonly protected by injunctions. The Patents, Trade Marks and Copyright legislation supplements the general power to grant an injunction, in certain cases. Confidential information and trade secrets are common law intellectual rights which may be protected by injunctions which restrain disclosure and abuse.
There are special statutory injunctions under planning, environmental and other legislation. For example, any person may apply to Court to have a breach of planning legislation stopped by Injunction. This is in addition to the enforcement powers of local authorities. There is no requirement that the applicant is affected by the breach
In some cases, statutes have limited the grant of injunctions. Injunctions were formerly more readily granted in trade disputes. Subject to compliance with certain conditions by the employees, the legislation has limited the employer’s ability to obtain an injunction.
A Court will restrain breaches of so-called negative obligations in contracts even if the claimant has not suffered damages. Where a person agrees not to do something in return for payment e.g. a restrictive covenant, this will generally be enforced. Restrictions on land and other contractual obligations which do not fall foul of competition law will be generally enforced. The Courts are more comfortable granting so-called negative injunctions than positive Injunctions.
Where a contract involves a positive obligation this may come close to a so-called order of specific performance. See our separate guide in that regard. The Courts will not almost compel enforcement of certain types of contract. In particular, a service contract will be rarely enforced by specific performance as to do so would be largely in vain.
In some cases, injunctions may be granted against an employer to compel the performance of the employer’s obligations. Where a person’s employment has wrongfully been terminated Injunctions may be granted to prevent the wrongful breach of contract. This may take place in either the public arena in conjunction with Judicial Review or in a private contractual setting.
Injunctions may be granted to protect rights granted under the Constitution in the case of disciplinary procedures. Where the State has attempted to deprive persons of their liberty or private parties have attempted to deprive persons of the constitutional rights Injunctions have been granted.
Injunctions have been granted in many cases for removal of public bodies where they have not followed constitutional fair procedures in dealing with disciplinary, suspension and employment termination matters.
The Attorney General may apply to the Court to vindicate public rights. This may include interference with public rights of way. The Attorney General may also take proceedings to prevent violation of the public right.
Actions may be taken by private citizens in the name of the Attorney General with its consent. In this case, the person bringing the action is the real plaintiff. The Attorney General must be satisfied that there is an arguable case and that it is in the public interest that it should be brought. An indemnity may be required for costs and the Attorney General may discontinue them.
Many Statutes give rights to particular bodies to enforce matters by legislation. In the case of interference with public rights, the Attorney General can take action to vindicate the public rights. For example, an obstruction of a public roadway or right of way may be enforced by the Attorney General.
The Attorney General may enforce public rights by Injunction. The Attorney General may seek an Injunction to enforce a public right even if there is a separate remedy under legislation or it constitutes a criminal offence. The Court, however, will be inclined to consider the adequacy of the alternative sanction.
A member of the public may take action for infringement of a public right where he suffers particular detriment over and above that suffered by the general public or where the interference had caused particular or special loss or damage peculiar to the claimant.
Grounds for Refusal
An Injunction may be refused on the basis of delay or acquiescence. Even if this has been unreasonable delay in commencement in the prosecution of proceedings it may be unjust to grant an Injunction. Everything will depend on the circumstances.
Acquiescence is where a person consents to a conduct or stands bys. In this situation, it may be unjust that an injunction be granted even if they may be entitled to damages. In these circumstances, it may not possible to obtain an Injunction even where the legal action is not yet subject to the Statute of Limitations. There is power to award damages in lieu of, together with or in substitution for Injunction.
A prohibitory Injunction requires the defendant to refrain from doing something. A mandatory Injunction compels the defendant to carry out a particular obligation or matter. The Courts are traditionally reluctant to give a mandatory Injunction. Sometimes mandatory Injunctions were phrased negatively so as to come close to being positive Injunctions.
A positive Injunction may enforce an Order reinforcing or restore a particular situation. Restorative Injunctions required to correct the consequence of past wrongs are more readily granted. An Injunction will only be granted if it can be specified with a required degree of certainty and can be effectively enforced. The enforcement of the Injunction will be a matter for the applicant. The applicant will need to make a fresh Application to compel enforcement. The Courts or the Gardai do not automatically enforce Injunctions.
It is recognised that a mandatory Injunction would place additional hardship or expense on the defendant and this may be significant in the exercise of the discretion. A mandatory Injunction will generally be only granted where the applicant shows a strong probability that great damage will be caused in the future. The costs of compliance will be considered. This will be a factor depending on the justice of the case circumstances.
A person bound by an Injunction may be liable for contempt of Court for failure to comply. Punishment may be by way of fine or committal to prison or sequestration of assets. The applicant to obtain the Injunction must make application for sanction for contempt. A breach may constitute contempt of court.
The Court may of its own motion seek to punish a person for failure to comply. Generally, the Court will require to be satisfied that there is willful disobedience. The practicality of compliance will be a factor.
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