SA17 - Interim Injunctions Flashcards
What type of interim remedies are there?
interim injunction, interim declaration, order for detention, custody, preservation of property, search for property, taking sample of property, freezing injunction.
When may an interim remedy be done?
At any time - before proceedings or after judgement.
What if there has already been a final remedy sought?
This must be stated in the claim form.
What happens to an interim remedy if someone is acting in the capacity of a representative?
It will be binding on all parties.
When can an interim injunction be made without notice?
If it is urgent.
What duty does an interim injunction carry?
The duty of full and frank disclosure to highlight any facts, law or procedural issues even if adverse to their case.
What is the definition of interim injunction?
This is a court order requiring a party to either refrain from an act or carry out an act.
What is a perpetual injunction?
An injunction which is granted at trial after the claimant has established their case.
What is an interlocutory injunction?
Any order, other than a final judgment.
When can a court grant an interim injunction (criteria)?
Court has power to grant if it is just and convenient to do so including pending appeals and the High Court can be restricted to grant an interim injunction.
What are the features of an interim injunction?
Can Be conditional or unconditional.
What guidelines must be considered of an interim injunction?
Freedom of expression - exceptional circumstances, requirement of cross undertaking - if applying without notice, give cross undertaking, mandatory injunctions - court are generally reluctant as higher risk of irreversible prejudice to D, assessment of law/fact - judges may need to determine facts but not as far as making final determination, freezing orders- court will consider a delay as it may cast doubt on urgency.
What is an interim declaration?
It is a final remedy at trial or on a preliminary issue in interim proceedings.
When must interim declarations be made?
Proceedings against the crown.
What factors must be considered if an interim injunction is made before proceedings?
It should only be if matter is urgent/in the interest of justice, directions will be given on how to commence a claim.
How does someone apply for an interim injunction?
Draft order, fee, evidence, application notice. If without notice - give reasons why as court will only grant one if there are good reasons for not giving notice.
What can happen if D breaches interim injunction?
May be sent to prison.
When can a court refuse to grant an interim injunction?
If the applicant cannot establish an arguable case for a wrong he has or will commit.
What are the principles needed to be used to determine whether to grant an interim injunction?
American Cynamid - 1. Is there a serious question to be tried, 2. Would damages be an adequate remedy for the party, 3. Where does the balance of convenience lie?
How do we know how must information should be consider in a interim injunction hearing in order for it to not be made into an mini trial?
Usually as interim injunctions are urgent, there is going to be incomplete information, the smaller details are for trial.
What should be considered in the first stage of American Cynamid, is there a question to be tried?
That there is a serious question to be tried which is not fanciful.
What if the judge is uncertain in the first stage of American Cynamid?
Court would prefer to not cause injustice on part of Claimant, C must provide undertaking to D just in case of injustice on D and interim injunction found in error.
What happens if there is a pending appeal?
Interim injunction can still be granted if still seeking to restrain irreversible harm pending appeal.
What is a Quia Timet application?
Threatened or imminent but haven’t yet commenced.
What must be proved in a Quia Timet application?
Must be imminent breach and proof that damage would be substantial.
What should the court not do when considering interim injunction?
Not express whether case has merit but it should try dispose of issues early.
What should be considered in the second stage of American Cynamid, would damages be adequate?
If damages are adequate remedy, do not grant interim injunction - if it is not adequate, court should grant interim injunction.
What should be considered in the second stage of American Cynamid, if there is a contractual clause about damages?
If there is already a contractual clause outlining damages, the does not rule out the injunction.
What should be considered in the second stage of American Cynamid, if cannot decide whether damages would be adequate?
Move to the next stage of assessing where the balance of convenience lies.
What does balance of convenience mean?
Court tries to assess which action will cause the least amount of injustice, consider all circumstances of the case, whether the claimant would succeed at trial and effect of delay to trial.
What should be considered in the third stage of American Cynamid, if cannot decide?
Court should take action based on preserving status quo (current issues) and the relevant strength of each party’s case.
Why should the court be in favour of granting sometimes?
It may get rid of claim altogether - judge should consider that if C is denied the opportunity to establish claim and case proceeded to trial, what injustice the refusal will cause.
What is a mandatory injunction?
Require positive action to be undertaken to put wronged party in position they were in before breach.
When will a mandatory injunction be granted?
Sometimes preemptively if there is no remedy in law.
What test must be applied for a mandatory injunction?
- Which type of injunction would cause least amount of injustice, 2. Mandatory order carries higher risk of injustice as more difficult to return to normal, 3. Only be granted if applicant would succeed at trial, 4. Even where C cannot conclusively demonstrate success may grant where risk of injustice is greater is not granted.
What is an undertaking?
A general voluntary promise to the court.
What is a cross undertaking?
A specific promise to the court, usually to pay damages to D, if injunction is later found to be unjustified.
Can a court vary an undertaking?
No
What happens if party is absent to hearing of interim injunction?
A return date will be set to come back.
What can be granted instead of an interim injunction?
The defendant can offer an undertaking in lieu of the injunction meaning that C can accept D’s security offering and a consent or er will be made.
What happens if parties want to be released from undertaking?
Must make a new one replacing the old one. The court has discretion to accept new undertaking or may attach a condition to it.
Can an undertaking be appealed?
No, unless extraordinary circumstances.
Can a court compel a Claimant to provide an undertaking?
No, but court can refuse to grant injunction if applicant is unwilling to provide it.
Who can enforce a cross undertaking?
Any party, even a party not to proceedings.
What if the applicant is unable to offer a credible undertaking?
if the applicant for an interim injunction is of limited means/value is low, this will not prevent a court from granting application.
How can it be proven that party is unable to offer credible undertaking?
Onus is on applicant to demonstrate funds are not available and explain why they should pay less.
