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. The consideration for the grant of the Injunction depends on the balance of convenience. See below as to the meaning of this phrase.
There are some circumstances in which there are statutory powers for Courts to grant Injunctions. In these situations, other considerations apply. For example, there are special planning and environmental law injunction like remedies. In other cases, in particular, in industrial relations, where legislation limits the extent to which an injunction can be granted.
Context in Proceedings
The pretrial Injunction should be distinguished from the permanent or perpetual Injunction that may issue after the hearing of a case. An Injunction may issue after the full hearing of the case irrespective of whether or not a pretrial or so-called interlocutory Injunction has been granted or applied for. Similarly, a pretrial Injunction may be granted but an Injunction may not be granted in the final proceedings.
The rationale of the pretrial Injunction is that it preserves the status quo until the full trial of the legal action. The legal action may take several months or more commonly years to come about and the pretrial Injunction freezes the position or restrains the defendant from acting in some way pending the full hearing of the dispute.An Injunction will only be granted if damages would not ultimately be adequate to compensate the plaintiff/claimant.
An Injunction cannot be applied for by itself. It is always an ancillary protective measure in the context of full legal proceedings which may ultimately proceed to trial. Therefore when an injunction application is made proceedings must exist. The proceedings may issue simultaneously with the application for the Injunction.
These are one-sided or so-called ex-parte applications without notice to the other side which may be granted only where exceptional circumstances necessitate a pre-emptive one-side application. More commonly a pretrial application for Injunction would involve notice to the party affected. The notice is relatively short and Injunction Applications are usually made on the basis of notice of no more than a number of days.
Criteria for Grant
The criteria for the grant of Injunction is that an order for damages in the trial would be inadequate to protect the rights concerned. If damages would be enough, an injunction will not be granted.
A Court will only grant an Injunction if the applicant/plaintiff gives an adequate undertaking in damages to compensate the defendant should he ultimately lose in the claim at trial.
If damages would not fully compensate either party the Court then considers the so-called balance of convenience. The balance of convenience will depend on the circumstances and the nature of the rights concerned. All things being equal the Courts will attempt to preserve the status quo.
Because an Injunction is an equitable remedy based on perceptions of justice and fairness there are certain quite clear circumstances which may disqualify a plaintiff from an Injunction where he would otherwise be entitled to it. Where, for example, the plaintiff or claimant lacks clean hands, delays and so on he may be denied an Injunction. See our separate chapter in relation to equitable remedies.
A requirement that there be a fair question to be tried does not require a detailed examination of the merits. This requires that the case have some reasonable basis. It does not require a so-called presumptive or current case. It is fair to say that the threshold is not very high. The Court is conscious that it is not examining the merits of the question as this is more appropriate to the full hearing.
If the case is vexatious or highly questionable or speculative it is unlikely to pass the relevant test. If there are serious matters in dispute which require a full trial then the test is likely to be satisfied. If the claim is tactical and is not bona fide the test may be failed.
A qua timet (what is feared)Injunction is known given in apprehension of an imminent wrong. If, for example, a person is about to publish a libel such an Injunction may issue. The above broad criteria apply.
Adequacy of Damages
The adequacy of damages is considered from both the perspective of the claimant and the defendant in the context of the claimant’s undertaking for damages. Where one side would suffer irretrievable damage in the absence of an Injunction but the other could be compensated in damages if the Injunction was invalid then an Injunction is more likely to be granted. Similarly, in the opposite circumstances, an injunction is likely to be refused.
In cases where the damage may be irretrievably done unless restrained an Injunction may be appropriate. The irretrievability of the loss may mean that damages are not adequate.
If it will be very difficult to assess damages because, for example, loss of reputation or fatal loss to business damages would be may be inadequate.
The Court may take account of circumstances where one or other party may, in fact, be unable to pay damages. In such a case an award of damages would be inadequate.
Undertaking to pay Damages
The context of the plaintiff’s undertaking to pay damages the Court must be satisfied as to its ability to pay damages. The claimant may be required to show that he has financial means to honour the undertaking.
On the other hand, if it would be unjust to impose an undertaking of damages on a claimant without the means to pay, the Court may nonetheless grant an Injunction. In certain circumstances, the Court may allow a third party to give the undertaking on behalf of the claimant.
The Court may require security for the payment of damages in order to back up the Injunction.
The requirement for an undertaking may be dispensed with if the justice of the case requires, for example, where there is an obvious wrongdoing on the part of the defendant.
Balance of Convenience
Certain types of rights are more likely to be protected by Injunction than other. This includes actions to restrain a breach of covenant affecting land, trespass, defamation, passing off.
The balance of convenience test weights the interests of the parties against each other. The word convenience is misleading in this context. It refers to a balancing of factors of potential loss by the granting or not granting of the Injunction by one relative to the potential or retrievable loss suffered by the other.
The question of whether damage is irretrievable or irreparable is important.
In weighting the balance of convenience the Courts will tend to protect the status quo if the balance is equal.
In some types of an injunction, the Courts depart from the above principles. It is possible in exceptional circumstances for parties to agree that the application for Injunction would be treated as the full trial. In this case, leave may be granted to have parties examined orally.
Where there is no argument or reasonable defence the Courts may grant an Injunction as of right without reference to the above criteria. Where a person is undertaking an indisputable trespass an Injunction will be granted automatically. Similarly, in other cases where the position is clear cut, the Injunction may be granted immediately.
In many cases, it is unlikely that the matter will go to an ultimate hearing. In these cases, the result of the Injunction Application may determine the matter. The Courts may look further into the merits of the application so as not to do justice. The extent to which this principle is accepted is controversial.
Pre-trial Injunctions are generally negative. They prohibit a course of action. Mandatory Injunctions i.e. Injunctions compelling a person to do something are less readily granted by the Courts. The Courts do not wish to grant Injunctions which are difficult or impossible to enforce and monitor.
However, on occasions, a mandatory Injunction may be appropriate at the pre-trial stage. Sometimes there can be a thin difference between negative and positive Injunction and it may depend on the wording. An Order to refrain from doing something may of necessity require that something else be done.
The Court’s criteria in relation to an Application for mandatory Injunction are more rigorous. The Courts are much more reluctant to grant a mandatory Injunction and will only do so in exceptional circumstances. Generally, it is harder to undo a mandatory Injunction than a negative Injunction which restrains, freezes or preserves the status quo. A mandatory Injunction would come close to a final Court Order.
Generally, a case will need to be very clear cut before a mandatory Injunction will be granted. There would be a greater risk of injustice if a mandatory Injunction is incorrectly given. Although there is controversy regarding the exact criteria for a mandatory Injunction the Courts tend to require a clearer, stronger, sharper case.
The theoretical grounds differ in the Court cases but it is clear that a higher test is involved. Even if the same theoretical test as applies to a negative Injunction was applied the application of those criteria to the balance of convenience would weigh heavily against a positive or mandatory Injunction.
The Application for an Injunction requires the issue of Court proceedings and the simultaneous issue of an interlocutory Motion. A Motion is an Application to Court usually on four days notice for a pre-trial Order. The Courts generally reserve particular periods each week for the hearing of Motions.
Service of at least between two and four days prior to the hearing date is usually required. If a solicitor is already on record service may be to the solicitor. If the proceedings have not yet been served the same considerations as apply for service of initial proceedings in the relevant Circuit Court or High Court will apply. The Court Rules allow the original claim form and Motion to be served simultaneously.It is possible to apply to a Judge for shorter service.
The Application for Injunction is based on a written sworn Affidavit. It must be sworn by persons with means of knowledge. The strict hearsay rules do not normally apply to Affidavits. Generally, the person swearing the Affidavit must state his means of knowledge. A Court may give less weight to a hearsay statement in an Affidavit.
The Affidavit must set out the facts giving rise to the claim and the entitlement to an Injunction. Commonly documents or letters are referred to or exhibited. These are physically attached to the Affidavits which are sworn and filed in Court in advance.
Commonly once the Motion is served the defendant or respondent will put in a Replying Affidavit. Commonly he will seek an adjournment on the Motion day to file a Replying Affidavit.
It is commonly the case that Motions are adjourned on several occasions while Affidavits and Replying Affidavits are filed. The adjournment may be on consent or may be granted on Application by the Court.
Ultimately the Motion on which the Injunction is sought will be heard most commonly on Affidavit. The Judge will make an Order and this Order constitutes the Injunction. The terms of the Order will generally be set out in the Motion seeking the Order. It may be amended as the Judge considers having regard to the defendant’s reply.
Generally, the Order will restrain the defendant from doing certain things until the Court makes a further Order or until the full hearing of the matter. Breach of an Injunction is contempt of Court. If a party breaches an Injunction an Application may be brought for content and attachment. See our section on enforcement of Court Order.
In some cases, the Court will accept an undertaking from the defendant in place of granting an Injunction. In this case breach of the undertaking can be enforced by way of contempt of Court.
Costs and Appeal
The costs of the Injunction Application are generally held over until the full trial of the action. This is referred to as reserving costs.
In the Commercial Court, there is a special rule to the effect that the Judge should make an award of costs save where it is not possible to adjudicate on liability for costs at the interlocutory Application stage. The purposes to ensure that insofar as possible the costs are determined.
It is possible to apply directly on appeal regarding the grant or refusal of an Injunction. The Supreme Court is generally reluctant to interfere with a discretion of a High Court in granting an Injunction.
Similarly, it is possible to appeal from the Circuit Court to the High Court on a grant or refusal of an Injunction.
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