18 Interim injunctions

Question 1

Should the courts consider the merits of a case when deciding to grant an interim injunction?

Answer 1

No, unless:
• granting the II would fully dispose of the case or
• only as a last resort (after American Cyanamid)

Question 2

What are the questions (principles) set out in the American Cyanamid case?

Answer 2

1. In there a serious issue to be tried?
2. Would damages be an adequate remedy?
3. Where does the balance of convenience lie?

Question 3

If damages would not be an adequate remedy for R, is this reasons for granting the order or refusing?

Answer 3

Refusing, as if the court grant the II and R suffers loses, these would not be able to remedied

Question 4

If damages would not be an adequate remedy for A, is this reason for the II to be granted to refused?

Answer 4

Granted as if the II does not prevent R from taking a certain step, the damage A’s incurs cannot be remedied with £

Question 5

What things should be considered when deciding 2. Would damages be an adequate remedy? (6)

Answer 5

1. If R is unlikely to be able to pay damages awarded against her
2. The damage is irreparable
3. Damage does not translate to £
4. No other available markets to re-buy what will be lost
5. Damages difficult to assessment
6. Wording in contract limits possible damages awarded to A

Question 6

How does a court determine where the “balance of convenience lies”?

Answer 6

• 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

Question 7

What else can counsel do after taking the court through the American Cyanamid principles?

Answer 7

Counsel can ask the court to consider special factors

Question 8

What is a cross-undertaking and how are they used with regard to IIs?

Answer 8

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

Question 9

In the face of an application from A for an II, or than contest the application, what can R do?

Answer 9

R can make a UT to do or not do what A is seeking in the II application

Question 10

What if the court find there is not a serious issue to be tried?

Answer 10

The application will be dismissed, no II will be granted and the subsequent American Cyanamid principles will not be considered