18 Interim injunctions Flashcards
Should the courts consider the merits of a case when deciding to grant an interim injunction?
No, unless:
• granting the II would fully dispose of the case or
• only as a last resort (after American Cyanamid)
What are the questions (principles) set out in the American Cyanamid case?
- In there a serious issue to be tried?
- Would damages be an adequate remedy?
- Where does the balance of convenience lie?
If damages would not be an adequate remedy for R, is this reasons for granting the order or refusing?
Refusing, as if the court grant the II and R suffers loses, these would not be able to remedied
If damages would not be an adequate remedy for A, is this reason for the II to be granted to refused?
Granted as if the II does not prevent R from taking a certain step, the damage A’s incurs cannot be remedied with £
What things should be considered when deciding 2. Would damages be an adequate remedy? (6)
- If R is unlikely to be able to pay damages awarded against her
- The damage is irreparable
- Damage does not translate to £
- No other available markets to re-buy what will be lost
- Damages difficult to assessment
- Wording in contract limits possible damages awarded to A
How does a court determine where the “balance of convenience lies”?
• weighs up position of each party. If the balance lies in neither parties favour, no II should granted
• status quo should be maintained i.e. each parties positions before issue arose
What else can counsel do after taking the court through the American Cyanamid principles?
Counsel can ask the court to consider special factors
What is a cross-undertaking and how are they used with regard to IIs?
If R has made a UT instead of II (i.e. sole and binding promise will do not or do what A wants). A must then make an UT that he will compensate R for any losses he suffered if A is not awarded the injunction at trial
In the face of an application from A for an II, or than contest the application, what can R do?
R can make a UT to do or not do what A is seeking in the II application
What if the court find there is not a serious issue to be tried?
The application will be dismissed, no II will be granted and the subsequent American Cyanamid principles will not be considered