Interim Injunctions Flashcards
What is an injunction?
Can an indication stand on its own?
Order telling the respondent to refrain from doing something or to do something
No - must be as substantive cause of action
When can an interim injunction be granted?
Before proceedings have been started; and (if urgent and desirable in the IofJ)
After judgment has been given
Application must be …..
Should notice be give?
… supported by evidence
Yes but can grant without if there is good reason to do so, applicant must give the reasons for not giving notice within their evidence
When can an injunction be made? TEST
(1) HC may grant an injunction in cases where it appears JUST and CONVENIENT to do so
(2) any order either made conditionally or on such terms and conditions are the court thinks JUST
What are the two types of Injunctions?
Prohibitory — You MUST NOT X
Mandatory — You MUST DO X
Can an interim injunction be granted to a party who has been unsuccessful at trial but is appealing?
Yes
The court is normally only prepared to grant an interim injunction if the applicant is prepared to offer what?
What is this?
CROSS UNDERTAKING
Promise to compensate the respondent if it turns out, following the trial, that the injunction should not have been granted
Does the court have the power to order a party to give a cross undertaking?
No but in reality a cross undertaking is the price of an injunction, unlikely to be granted without one
What are the 3 considerations under American Cyanamide?
- Is there a serious question to be tried?
- Would damages be an adequate remedy?
- Where does the balance of convenience lie?
What is considered under the question of if damages would be an adequate remedy?
If damages would be an adequate the remedy for issue = no need for injunction
If not an damage remedy for the C, then need to consider if the D were to succeed at trial, would damages adequately compensate the D for the loss D has suffered by the injunction being imposed
If yes = injunction should be imposed
If no = move on to question 3
If the applicant is apply for an prohibitory injunction, what would the court consider when considering where the balance of convenience lie?
What if this is evenly balanced?
All the circumstances, and should take the course seems less likely to cause prejudice
But if evenly balanced, then can consider PRESERVING the STATUS QUO, as to interrupt would cause a greater inconvenience
If the extent that the disadvantage that would be suffered by either party in the even of this success at trial does NOT differ much, then can consider in EXCEPTIONAL cases the relative strength of each case in order to tip the balance
+ any other special factors
If the applicant is apply for an mandatory injunction, what would the court consider when considering where the balance of convenience lie?
Apply American Cyanamide as modified by Nottingham Building Society
Take the course which involves the least injustice
Remember that a mandatory injunction requires positive steps to be taken, which carries a greater risk of injustice if it is later found that the injunction should not have been granted
Court can also consider whether it feels a HIGH DEGREE of ASSURANCE that the C will succeed at trial, because higher degree of assurance = lower the risk of injustice
Even if court does not feel a high degree of assurance, injunction can still be granted if the RISK OF NOT granting the injunction OUTWEIGHS the RISK of Granting it
When will the American Cyanamide questions NOT apply?
Will not apply if the affect of the injunction will be to effectively dispose of the claim
Or
Where there is no arguable defence
Where there is no real interest in going to trial the interim application ‘will finally determine the action’
What will the court consider in these circumstances?
Degree of likelihood that the claim will succeed
Do its best to avoid injustice
