injunctions (week4)

Question 1

what is a prohibitory injunction?

Answer 1

requires respondent to refrain from doing an act

Question 2

what is a mandatory injunction?

Answer 2

requires respondent to do a specific act

Question 3

what is a quia timet injunction?

Answer 3

allows both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed

Question 4

when can an injunction be granted?

Answer 4

when it is just and convenient

Question 5

what are the American Cyanamid guidelines for injunctions? (3 steps)

Answer 5

1. is there a serious question to be tried?
2. 2. Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? (consider applicant and respondent’s perspectives)
3. balance of convenience

Question 6

as injunctions are an equitable remedy, what equitable principles need to apply? (there are 3)

Answer 6

1. injunctions will not be obtained if it serves no practical purpose
2. applicant must have clean hands
3. if there is an excessive delay then application may be refused

Question 7

what is an injunction?

Answer 7

an order of the court requiring a party to do or to refrain from doing a given act.

Question 8

what happens if you breach an injunction?

Answer 8

Potentially punishable as contempt of court, so breach can result in a fine and/or imprisonment.

Question 9

what is an interim injunction?

Answer 9

temporary measure taken at an early stage and its an order from court either requiring party to do something or refrain from doing a given act

Question 10

what is a perpetual injunction?

Answer 10

It is a final injunction (usually made at trial) that continues with no limitation of time.

Question 11

what is security for costs?

Answer 11

Security for costs is an application made by D who is concerned that C will not be willing/able to pay the D’s costs should the claim be successfully defended.

Question 12

who can claim for security of costs?

Answer 12

• D against C
• C against D in respect of a counterclaim
• 3rd party against D in respect of an additional claim

Question 13

What are the grounds for security of costs? (2 matters – need both)

Answer 13

• Having regard to all the circumstances of the case, it is just to make an order
• One or more of the prescribed conditions in the rules are satisfied

Question 14

what are the prescribed conditions for security for costs? (part of the 2 grounds for security of costs)

Answer 14

C is a resident out of the jurisdiction
C is a company and there is reason to believe it will be unable to pay the D’s costs if it is ordered to do
C has moving assets

Question 15

what is an interim payment?

Answer 15

Interim payment is a payment on account of damages, debt or other sum (except costs) which a D may be held liable to pay to a C. interim payment application can ONLY BE MADE BY C.

Question 16

When must an interim payment application be served?

Answer 16

C must serve the application notice and evidence on the D at least 14 days before the interim hearing.

Question 17

How much can a D pay for interim payment?

Answer 17

No more than a reasonable proportion of likely final judgment

Question 18

What conditions must be satisfied for an interim payment? (There are 3)

Answer 18

• D has admitted liability to pay damages to C
• C has obtained judgment against the D for damages to be assessed
• Satisfied, that if the claim went to trial C would obtain judgment for a substantial amount of money against the D

Question 19

What is the purpose of a summary judgment?

Answer 19

To enable the court to dispose of claims or issues without the need for a full trial.

Question 20

what is a summary judgment?

Answer 20

Summary judgment is the disposal of cases or issues without trial. Either a C or D can apply for summary judgment or court can fix a summary judgment hearing on its own initiative.

Question 21

What are the 2 grounds for a summary judgment? (you need both grounds)

Answer 21

1. Claimant has no real prospect of succeeding on the claim or issue or D has no real prosect of successfully defending the claim or issue
2. There is no other compelling reason why the case or issue should be disposed of at trial

Question 22

Which court should an interim application go to?

Answer 22

The court which the main claim is being dealt with (if it is pre-action steps then the court the main claim is likely to be dealt in).

Question 23

How is an interim application made?

Answer 23

Filing at court an application notice, a witness statement and a draft order and paying a fee.

Question 24

what is without notice applications?

Answer 24

a party makes an interim application without notifying the other party

Question 25

what are the situations that arise where a without notice application can be made?

Answer 25

1. There is exceptional urgency
2. Overriding bjective is best furthered by doing so
3. All parties consent
4. Court gives permission
5. A court order, rule or practice direction permits
6. Date for hearing has been fixed, party wishes to make an application at that hearing and doesn’t have sufficient time to serve an application notice. (should sill inform the other party and court ASAP.