Injunctions Flashcards
Perpetual Injunctions
What two typologies can perpetual injunctions fall under?
PIs can be (i) quia timet or non-quia timet (ii) mandatory or prohibitory. Perpetual = may last forever.
Perpetual Injunctions - Quia Timet Injunction
What is a QTI?
QTI: QTIs are injunctions granted to restrain an anticipated violation of P’s rights
The principles governing QT and non-QT injunctions appear the same, however, the standard of proof is different: actual violation is on the balance of probs, anticipated is arguably a higher standard.
Perpetual Injunctions - QTI - Standard of Proof
AG v Manchester [1893]
A ‘strong case of probability’ the apprehended mischief will arise.
Perpetual Injunctions - QTI - Standard of Proof
AG v Rathmines and Pembroke Joint Hospital [1904]
- P sought injunction to stop D building smallpox hospital. Refused: no real danger was proved.
- Standard: “a strong probability, almost amounting to a moral certainty”
Perpetual Injunctions - QTI - Standard of Proof
Independent Newspapers v Irish Press [1932]
- P claimed it owned the property and goodwill in the name ‘evening telegraph’. Rejected: failed to show damage would occur. Must show a ‘reasonable probability’ what’s threatened will cause damage
Perpetual Injunctions - QTI - Standard of Proof
Szabo v Esat Digiphone Ltd [1998]
- P sought injunction to stop D erecting mobile phone station beside their school. Held you must show a “substantial risk of danger” and held no such danger existed here i.e. to the children prior to the case.
- Held saw no diff in principles on interloc QTs + other interloc inj: just harder to show risk of future injury
Perpetual Injunctions - QTI - Standard of Proof
Ryanair v Aer Rianta [2001]:
Held must be proven substantial risk of injury for QT injunction.
All of these should be read in light of Hardiman J in SC in
Perpetual Injunctions - QTI - Standard of Proof
Boliden Tara Mines [2010]:
In Ireland, no form of words other than ‘proof on the balance of prob’ should be
used. There’s only 2 standards of proof.
Perpetual Injunctions - Mandatory Perpetual injunction -
What is the general approach of the courts to mandatory perpetual injunctions?
A perpetual injunction, QT or non-QT, can be prohibitory or mandatory. Governed by same principles, but less likely to grant mandatory as (1) more onerous + (2) harder to frame to allow D know his precise obligs
If actual/anticipated violation of a right shown, prima facie entitled to injunction. But, it’s a discr remedy:
Pride of Derby v British Celanese [1953]: Eversheds MR: ‘If P is prima facie entitled to an injunction, he will be deprived of that remedy only if special circumstances exist (e.g. if damages are adequate remedy).
Perpetual Injunctions - Mandatory Perpetual injunction - Damages Would be an Adequate Remedy
Shelfer v City of London Electric Lighting Co [1895] SHELFER PRINCIPLES
P must prove he wouldn’t be compensated adequately for an actual/anticipated violation by damages.
- D did lighting works causing damage to pub nearby causing P (had pub under lease) annoyance.
- Held should be confined to remedy in damages. Court of Appeal overturned. PRINCIPLES:
(a) If the injury to the P’s legal rights is small,
(b) And is one which is capable of being estimated in money,
(c) And is one which can be adequately compensated by a small money payment,
(d) And the case is one in which it’d be oppressive to the D to grant an injunction;
Then damages in substitution for an injunction may be given.
- But stressed just bc D is able + willing to pay damages isn’t a factor to persuade courts to deny an inj
Perpetual Injunctions - Mandatory Perpetual injunction - Damages Would be an Adequate Remedy
Express Newspapers v Keys [1980]
- P sought inj restraining TUs from inducing members to breach their contracts w P. Held just bc the TUs could pay damages doesn’t mean its adequate and would allow them avoid liability.
Perpetual Injunctions - Mandatory Perpetual injunction - Damages Would be an Adequate Remedy
Kennaway v Thompson [1981] UK
- P got inj to stop a nuisance of power-boating on lake near home. LJ felt the Shelfer principles were binding + especially in cases involving a continuous nuisance, such as the one here.
Perpetual Injunctions - Mandatory Perpetual injunction - Damages Would be an Adequate Remedy
Patterson v Murphy [1978]
- P sought injunction restraining D from carrying out quarrying activities on land beside their house
- HC satisfied a serious nuisance had been established + would continue unless restrained:
(1) When an infringement of P’s right and a threatened further infringement to a material extent have been established, P is prima facie entitled to an injunction. Only deprived in exceptional circs.
(2) Shelfer principles
(3) P’s conduct may disentitle him to an injunction. D’s may disentitle him seeking substitution.
(4) The mere fact a wrongdoer is willing to pay for the injury is not a ground for substituting damages
Perpetual Injunctions - Mandatory Perpetual injunction - Damages Would be an Adequate Remedy
Curust Financial Services v Loewe-Lack [1994
Mere difficulty vs impossibility in calculating damages: damages not an adequate remedy?
Finlay CJ held difficulty, as opposed to impossibility, shouldn’t be a ground for characterising awarding damages as an inadequate remedy
Perpetual Injunctions - Mandatory Perpetual injunction - Damages Would be an Adequate Remedy
Sheridan v Louis Fitzgerald Group [2006
Finlay CJ’s comments in Curust Financial Services were relied on here:
- P (caterer) entered lease w D to provide food in 2 pubs. D denied existence of lease. P sought mandatory interlocutory inj compelling D to let him cater pending trial. Rejected: damages adequate
- Argued damages inadeq due to potential loss in business bc of less proficient caterer working til trial
- Rejected: Curust held regard can be had to loss up to date damages assessed + probable loss that’d occur after. P would be entitled to damages to compensate for any losses that’d accrue during any future period.
Perpetual Injunctions - Mandatory Perpetual injunction - Damages Would be an Adequate Remedy
Sheridan v Louis Fitzgerald Group [2006
Finlay CJ’s comments in Curust Financial Services were relied on here:
- P (caterer) entered lease w D to provide food in 2 pubs. D denied existence of lease. P sought mandatory interlocutory inj compelling D to let him cater pending trial. Rejected: damages adequate
- Argued damages inadeq due to potential loss in business bc of less proficient caterer working til trial
- Rejected: Curust held regard can be had to loss up to date damages assessed + probable loss that’d occur after. P would be entitled to damages to compensate for any losses that’d accrue during any future period.
Perpetual Injunctions - Mandatory Perpetual injunction - Damages Would be an Adequate Remedy
Lynch v HSE [2010
- P (dentist) sought inj restraining D capping the budget for dental services scheme and claimed would go out of business pending the trial so damages inadeq. Rejected: held losses could still be calculated and P
hadn’t established they were likely to sustain loss incapable of being adeq remedied by damages
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Engaged or is Threatening to Engage in Unfair/Unreasonable Conduct
Argyll v Argyll [1967]:
Maxim 4: He who comes to Equity must come with clean hands
P’s adultery didn’t prevent her getting an injunction restraining her former husband to breach confidences. The cleanliness must be judged in relation to the relief sought.
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Engaged or is Threatening to Engage in Unfair/Unreasonable Conduct
Curust Financial Services v Loewe-Lack [1994]
- P sole distributor of D’s rust primer in Irl+UK. Fell out, ended. P contracted w 3rd party for supply.
- P sold under D’s name. P sought inj to stop D suppling to another distributor.
- D claimed 3rd party supply meant dirty hands, but Finlay CJ said it needs to be some moral turpitude
and doesn’t necessarily mean breach of contract alone. Granted injunction.
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Engaged or is Threatening to Engage in Unfair/Unreasonable Conduct
Meridian Comm v Eircell [2001]:
If both parties are guilty of misconduct, the court may grant an injunction:
SC held where misconduct by both, it balances out. Injunction granted.
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Engaged or is Threatening to Engage in Unfair/Unreasonable Conduct
Chappel v Times Newspapers [1975]
Maxim 3: He who seeks Equity must do Equity
- P members of TU seeking inj to stop D from ending their employment contracts. Refused: P failed to show they intended to abide by their contracts & give undertakings not to engage in disruptive practice
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Engaged or is Threatening to Engage in Unfair/Unreasonable Conduct
Eircell v Bernstoff [2000]:
D’s conduct may be a factor – reprehensible here, but P’s was reasonable.
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Delayed in Seeking injunctive Relief - Laches
What is laches?
Unreasonable delay that makes it unjust to grant an inj: must be such that to grant it would now oppress D.
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Delayed in Seeking injunctive Relief - Laches
Lennon v Ganly [1981
Ireland’s rugby team announced tour of South Africa at time of apartheid. Just before tour, P sought injunction to restrain it. Due to time bw announcement and application, refused.
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Delayed in Seeking injunctive Relief - Laches
Newport Football Club v Foorball Association of Wales [1995]:
Held delay of 2yrs seeking an interl inj not unreas bc of mitigating factors: seeking alt ways to resolve it. Shouldn’t be penalised for this.
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Delayed in Seeking injunctive Relief - Acquiescence
What is acquiescence?
It is an assent or lying by in relation to the acts of another and it must be unjust in all the circs to grant inj.
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Delayed in Seeking injunctive Relief - Acquiescence
Shaw v Applegate [1977]
- D bought property and covenanted not to use it as arcade, but did, 3 years later P sought injunction
- Held to deprive owner of legal right on acquiescence, it’d have to be dishonest to seek to enforce it
- Held P was confused if breach or not so deprived of claiming but only damages: goodwill+cost to D
Perpetual Injunctions - Mandatory Perpetual injunction - Plaintiff Delayed in Seeking injunctive Relief - Acquiescence
O’Hare v Dundalk Racing [2015]:
Injunction refused as delay in applying was prejudicial to 3rd party (7 years
delay, wanted to pick up pitches again, new person there 7 years). However, he granted damages.
Perpetual Injunctions - Mandatory Perpetual injunction - Granting an injunction Would Cause D or a Third Party Undue Hardship
Bellew v Cement Ltd [1948]
- Sought inj to stop D quarrying. D argued it was sole producer of cement in Irl so public inconv to stop
- SC refused: public interest is irrelevant in private law matters.
Despite Bellew, there have been cases where the courts looked beyond the rights of the parties in the case
