ELS-Theory of tort law-The grant of injunctions and balancing conflicting interests

Question 1

What is an injunction?

Answer 1

A form of court order that requires one of the parties to do something or prevent you from doing something.

Question 2

If an injunction order is not complied with, what can happen?

Answer 2

Face further penalties which may include imprisonment

Question 3

What do injunctions intend to do?

Answer 3

Make whole again someone whose rights have been violated and which cannot be adequately remedied by money.

Question 4

What type of remedy is an injunction?

Answer 4

Discretionary

Question 5

What does it mean that an injunction is a discretionary remedy?

Answer 5

Court will consider whether it is right in each particular case to grant the order.

Question 6

When deciding whether to grant an injunction, what questions will the court give special attention to?

Answer 6

Those of:
Fairness
Good faith
Delay
‘Coming to court with clean hands’ (contributing to the problem)

Question 7

Case for injunctions and balancing competing interests.

Answer 7

Miller v Jackson (1977)

Question 8

Facts of Miller.

Answer 8

Mr and Mrs Miller complained about cricket balls being hit into their garden.

Question 9

What did Lord Justice Cumming Bruce rely on to decide if it would be unfair to grant an injunction to the Millers?

Answer 9

Equitable principles

Question 10

5 reasons Lord Justice Cumming Bruce needed to rely on equitable principles to decide whether it would be unfair to grant an injunction to the Millers.

Answer 10

1. Cricket club had been in existence and the ground had been used by the local community, for a long time.
2. Millers received benefit of living adjacent to an open space.
3. Stopping the playing of sport would be a loss to the whole community.
4. Should have considered possibility of balls coming into their garden before they brought the house.
5. Mrs Miller, in particular, showed a very hostile attitude to the club and the players.

Question 11

Considering equitable principles, what did Cumming Bruce decide about the Miller case.

Answer 11

Decided it would not be equitable (fair) to grant the Millers an injunction

Question 12

What did Lord Denning to do decide an injunction should not be granted for the Miller case?

Answer 12

Using his discretion (judgement), weighed up the public versus private interest issue to decide that an injunction should not be granted.

Question 13

What did legal scholar Rudolf von Jhering argue the purpose of the law was?

Answer 13

To secure the “conditions of social life”

Question 14

What does the “conditions of social life” include?

Answer 14

Both physical existence and ideal values

Question 15

What are physical existence and ideal values dependent on?

Answer 15

The social order of the time and place

Question 16

What idea did Rudolf von Jhering develop?

Answer 16

A scheme of interests and designated them as individual, state and public.
The last of 2 which he tended to treat as one.

Question 17

Who was Jhering’s theory further developed by?

Answer 17

Roscoe Pound

Question 18

What did Roscoe Pound identify?

Answer 18

Public and private interests, claiming that a just result in every case could be achieved if those interests could be balanced.

Question 19

In Pound’s view, what was the only way in which public and private interests could be balanced?

Answer 19

if they were on the same level-if there was a conflict, then the public interest would prevail.

Question 20

Talk about private and public interest in Miller v Jackson (1977).

Answer 20

Public interest = Local community and cricket club, using cricket field for matches and for recreation, generally.
Private interest = Mr and Mrs Miller who complained they were unable to us their garden because of cricket balls being hit into it during matches.

Question 21

Whose theory did the CoA use in Miller?

Answer 21

Pound’s

Question 22

Whose interest prevailed in Miller?

Answer 22

Public interest prevailed over private when they were in conflict