INJUNCTIONS

INJUNCTIONS: Nature and

Function
Discretionary
In personam
For the protection of an existing right which is being
or will be infringed for which damages would not be
an adequate remedy.
Directs the party to whom it is addressed to do/refrain
from doing and in so doing restricts that party’s
freedom of action.
INJUNCTIONS: Types
What: mandatory/prohibitory
When: interlocutory (or interim)/perpetual
Prohibitory and Mandatory
What does the mandatory do?

What does the prohibitory do?

Do they differ?

Is it more difficult to get one as opposed to the other?

Is there a distinction between the two?

Prohibitory and Mandatory: obtaining
 It is more difficult to obtain a mandatory injunction. They are not
granted “as of course”

 from the judgment of Megarry J. in Shepherd Homes Ltd. v.

Sandham [1971] Ch. 340 , 351:
“…the court is far more reluctant to grant a mandatory injunction than
it would be to grant a comparable prohibitory injunction. In a normal
case the court must, inter alia, feel a high degree of assurance that at
the trial it will appear that the injunction was rightly granted; and
this is a higher standard than is required for a prohibitory
injunction.”
(Shepherd Homes was a pre-Cyanamid decision. However, Mustil LJ
in Locabail International Finance Ltd v Agroexport approved that
passage and affirmed that Cyanamid did not shift the position.)

Q: Why are courts more reluctant to grant mandatory injunctions than

prohibitory ones?
Prohibitory and Mandatory: Obliteration
of the categories?
Lord Hoffmann sitting in the JCPC in Olint (injunction sought was
an interlocutory one):
“For these reasons, arguments over whether the injunction should be
classified as prohibitive or mandatory are barren: see Films Rover
[1987] 1 WLR 670 , 680. What matters is what the practical
consequences of the actual injunction are likely to be. It seems to me
that both Jones J and the Court of Appeal proceeded by first
deciding how the injunction should be classified and then applying a
rule that if it was mandatory, a “high degree of assurance” was
required, while if it was prohibitory, all that was needed was a
“serious issue to be tried”. Jones J thought it was mandatory and
refused the injunction while the Court of Appeal thought it was
prohibitory and granted it”

Q: Does this mean that the categories (at the perpetual or

interlocutory stage) have been obliterated?
 Prohibitory and Mandatory: Obliteration of the categories?
Films Rover [1987] 1 WLR 670 , 680.:
In support of this proposition, counsel for Thorn-EMI relied in particular on the recent decision of
the Court of Appeal in Locabail International Finance Ltd. v. Agroexport [1986] 1 W.L.R. 657 , 664,
in which Mustill L.J. (with whom Balcombe L.J. agreed) approved the following passage from the
judgment of Megarry J. in Shepherd Homes Ltd. v. Sandham [1971] Ch. 340 , 351:
“Third, on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory
injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court
must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was
rightly granted; and this is a higher standard than is required for a prohibitory injunction.”

Mustill L.J. went on to say that although this judgment pre-dated American Cyanamid Co. v. Ethicon
Ltd. [1975] A.C. 396 the statement of principle “in relation to the very special case of the mandatory
injunction” was not affected by what had been said in the House of Lords in that case.
I would respectfully agree that there is no inconsistency between the passage from Megarry J. and
what was said in the Cyanamid case. But I think it is important in this area to distinguish between
fundamental principles and what are sometimes described as “guidelines,” i.e. useful generalisations
about the way to deal with the normal run of cases falling within a particular category. The principal
dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there
is by definition a risk that the court may make the “wrong” decision, in the sense of granting an
injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or
alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A
fundamental principle is therefore that the court should take whichever course appears to carry the
lower risk of injustice if it should turn out to have been “wrong” in the sense I have described. The
guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.
Prohibitory and Mandatory: Obliteration
of the categories?

See Cable & Wireless Jamaica Ltd v Digicel (Jamaica)

Ltd Claim No 2009 HCV 05568

See paras 49-50, 52

Whether mandatory/prohibitory the same fundamental
principle is that the court should take whichever course
appears to carry the lower risk of injustice if the court
should turn out to be wrong.
Perpetual
Comes after the determination of the merits and is
meant to finally settle the matter.
Interlocutory/Interim

Stage at which interim injunction is being sought?

Purpose of the Interim injunction?
How does the court decide whether/not to grant the
interim injunction? What does statute and case law
say?
Does it matter whether the interim injunction is of a
prohibitory or mandatory nature?
Interlocutory/Interim: Stage
“when an application for an interlocutory injunction to
restrain a defendant from doing acts alleged to be in
violation of the plaintiff’s legal right is made upon
contested facts, the decision whether or not to grant an
interlocutory injunction has to be taken at a time when ex
hypothesi the existence of the right or the violation of it,
or both, is uncertain and will remain uncertain until final
judgment is given in the action.”
Olint
Interlocutory/Interim: Purpose
“The object of the interlocutory injunction is to protect the plaintiff
against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial; but the plaintiff’s need
for such protection must be weighed against the corresponding need of
the defendant to be protected against injury resulting from his having
been prevented from exercising his own legal rights for which he could
not be adequately compensated under the plaintiff’s undertaking in
damages if the uncertainty were resolved in the D’s favour at the trial”
American Cyanamid

“ The purpose of such an injunction is to improve the chances of the court

being able to do justice after a determination of the merits at the trial. At
the interlocutory stage, the court must therefore assess whether granting
or withholding an injunction is more likely to produce a just result.”
Olint
 Interlocutory/Interim: How does the Court
decide?

Judicature (Supreme Court) Act, Section 49(h)

“…An injunction may be granted …by an interlocutory

order of the Court, in all cases in which it appears to the
Court to be just or convenient that such order should be
made; and any such order may be made either
unconditionally or upon such terms and conditions as the
Court thinks just”

Q: “Just and convenient” …Is that it?

Interlocutory/Interim: American
Cyanamid v Ethicon
American Cyanamid v Ethicon has been approved and applied by Jamaican
courts
1.The court must be satisfied that the Claimant’s case is not frivolous or vexatious,
viz., there is a serious question to be tried/reasonable prospect of success.
2.If there is a serious question, the court must next consider where the balance of
convenience lies.
(a) Determination as to where the BOC lies includes consideration as to whether
damages would be an adequate remedy for either party if it is ultimately found
that that party ought to have been successful at the interlocutory stage) (because
the D’s freedom of action is being interfered with)
(b) If there is doubt as to the adequacy of damages the court will next consider
where the [general] balance of convenience lies. {No list given}
3.If the balance of convenience does not clearly favour either party, it is a counsel
of prudence to take such measures as are calculated to preserve the status quo.
4.As a last resort the court may consider the relative strength of each party’s case
in order to tip the balance.
5.Finally, other “special factors” may have to be considered in individual cases.
Interlocutory/Interim: American
Cyanamid v Ethicon
Impact of Cyanamid:

Provision of guidelines---but court must still give full

weight to all the practical realities of the situation to
which the injunction will apply (per Lord Diplock in
NWL v Wood cited with approval by Sykes J in Little
Bay Ltd v Capital and Credit Merchant Bank)
Prima facie case
But there are a number of exceptions
 Interlocutory/Interim: Cyanamid
From Olint:

The basic principle is that the court should take whichever course seems likely to cause the
least irremediable prejudice to one party or the other.
There is however no reason to suppose that, in stating these principles, Lord Diplock was
intending to confine them to injunctions which could be described as prohibitory rather
than mandatory. In both cases, the underlying principle is the same, namely, that the
court should take whichever course seems likely to cause the least irremediable
prejudice to one party or the other: see Lord Jauncey in R v Secretary of State for
Transport, Ex p Factortame Ltd (No 2) (Case C-213/89) [1991] 1 AC 603 , 682–683. What
is true is that the features which ordinarily justify describing an injunction as mandatory
are often more likely to cause irremediable prejudice than in cases in which a defendant is
merely prevented from taking or continuing with some course of action: see Films Rover
International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 , 680. But this is no more
than a generalisation. What is required in each case is to examine what on the
particular facts of the case the consequences of granting or withholding of the
injunction is likely to be. If it appears that the injunction is likely to cause
irremediable prejudice to the defendant, a court may be reluctant to grant it unless
satisfied that the chances that it will turn out to have been wrongly granted are low;
that is to say, that the court will feel, as Megarry J said in Shepherd Homes Ltd v Sandham
[1971] Ch 340 , 351, “a high degree of assurance that at the trial it will appear that the
injunction was rightly granted”.
Interlocutory/Interim: Cyanamid: fixed rules/guidelines?

Fixed rules/guidelines?

What does Olint and other cases such as Mammee Bay

Club Ltd v New Wave Water Sports Ltd Claim No
2010 HCV 0794 say?

Does Olint provide a gloss or point us back to Section

49(h)?
 Interlocutory/Interim: Cyanamid: fixed
rules/guidelines?
“Even in light of the various principles from the relevant cases,
the critical and deciding question, in keeping with the statutory
authority that guides the Court’s function, must ultimately be
whether the making of an interlocutory order for an injunction
is just or convenient in all the circumstances of the case. This
principle seems to be reflected in the binding dictum of the
Privy Council in NCB v Olint wherein Lord Hoffmann, in
giving the opinion of the Board, stated that at the interlocutory
stage, the court must assess whether granting or withholding an
injunction is more likely to produce a just result.”
-Mammee Bay Club v New Wave Water Sports (McDonald-
Bishop J)
Cyanamid exceptions
The following are some of the cases which fall outside of
Cyanamid. As you read the cases in this area try to
appreciate how the court’s approach differs from
Cyanamid AND what warrants departure from Cyanamid.
1.Mandatory injunction
2.Defamation actions where the D intends to plead
justification or fair comment on a matter of public interest
3.Actions against public authorities
4.Final disposal of the action
5.Covenants in restraint of trade
6.Restrictive covenants
Cyanamid exceptions: Defamation
actions
“These principles have evolved because of the value the
court has placed on freedom of speech and I think also
on the freedom of the press, when balancing it against
the reputation of a single individual who, if wrong, can
be compensated in damages.”
Herbage v Pressdram Ltd
Cyanamid exceptions: Where the interim
injunction would dispose of the action
Miller v Cruickshank citing Cayne v Global Natural Resources
[1984] All ER 225.
“Where the grant or refusal of an interlocutory injunction will
have the practical effect of putting an end to the action, the court
should approach the case on the broad principle of what it can do
in its best endeavour to avoid injustice, and to balance the risk of
doing an injustice to either party. In such a case the court should
bear in mind that to grant the injunction sought by the plaintiff
would mean giving him judgment in the case against the
defendant without permitting the defendant the right of trial.
Accordingly, the established guidelines requiring the court to
look at the balance of convenience when deciding whether to
grant or refuse an interlocutory injunction do not apply in such a
case, since, whatever the strengths of either side, the defendant
should not be precluded by the grant of an interlocutory
injunction from disputing the plaintiff’s claim at a trial”
 Cyanamid exceptions: Where the interim injunction would
dispose of the action:
My Lords, when properly understood, there is in my view nothing in the decision of this House inAmerican Cyanamid Co. v. Ethicon Ltd.
[1975] A.C. 396 to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to
give full weight to all the practical realities of the situation to which the injunction will apply. American Cyanamid Co.
v. Ethicon Ltd., which enjoins the judge upon an application for an interlocutory injunction to direct his attention to the
balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing
with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in
favour of whichever party was successful in the application, because there would be nothing left on which it was in the
unsuccessful party's interest to proceed to trial. By the time the trial came on the industrial dispute, if there were one, in
furtherance of which the acts sought to be restrained were threatened or done, would be likely to have been settled and it
would not be in the employer's interest to exacerbate relations with his workmen by continuing the proceedings against
the individual defendants none of whom would be capable financially of meeting a substantial claim for damages. Nor,
if an interlocutory injunction had been granted against them, would it be worthwhile for the individual defendants to take
steps to obtain a final judgment in their favour, since any damages that they could claim in respect of personal pecuniary
loss caused to them by the grant of the injunction and which they could recover under the employer's undertaking on
damages, would be very small.
Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important
additional element. In assessing whether what is compendiously called the balance of convenience lies in granting or
refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the
respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is
incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in
establishing at the trial his legal right for the protection of which the injunction had been sought he may in the meantime
have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other
hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial, the defendant may in
the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm
and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in
consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate *1307 to bring down,
by themselves, the balance on one side or the other; and this is what I understand to be the thrust of the decision of this
House inAmerican Cyanamid Co. v. Ethicon Ltd. Where, however, the grant or refusal of the interlocutory injunction
will have the practical effect of putting an end to the action because the harm that will have been already caused to the
losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile
recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if
the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may
result from his deciding the application one way rather than the other.
Lord Diplock in NWL v Wood
Cyanamid exceptions: Mandatory
Injunctions
See Cable & Wireless Jamaica Ltd v Digicel- re the
applicable guidelines.

Prohibitory: American Cyanamid

Mandatory- Shepherd Homes as approved in Locabail
Cyanamid exceptions: Mandatory
Injunctions
Shepherd Homes v Sandham (a pre-Cyanamid case):
“In a normal case the court must, inter alia, feel a high
degree of assurance that at the trial it will appear that the
injunction was rightly granted; and this is a higher
standard than is required for a prohibitory injunction.”
Cyanamid exceptions: Mandatory
Injunctions
Lord Mustil in Locabail International Finance said:

One of the cases cited in support of that passage is the decision of Megarry J.
in Shepherd Homes Ltd. v. Sandham [1971] Ch. 340. In the course of his judgment
the judge said, at p. 351:
“Third, on motion, as contrasted with the trial, the court is far more reluctant to grant
a mandatory injunction than it would be to grant a comparable prohibitory injunction.
In a normal case the court must, inter alia, feel a high degree of assurance that at the
trial it will appear that the injunction was rightly granted; and this is a higher standard
than is required for a prohibitory injunction.”
It was pointed out in argument that the judgment of Megarry J. antedates the
comprehensive review of the law as to injunctions given by the House of Lords in
American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 but to my mind at least, the
statement of principle by Megarry J. in relation to the very special case of the
mandatory injunction is not affected by what the House of Lords said in the
Cyanamid case. The matter before the court is not only an application for a mandatory
injunction, but is an application for a mandatory injunction which, if granted, would
amount to the grant of a major part of the relief claimed in the action. Such an
application should be approached with caution and the relief granted only in a clear
case.
Interlocutory/Interim
Stage at which interim injunction is being sought?
Purpose of the Interim injunction?
How does the court decide whether/not to grant the
interim injunction? What does statute and case law
say?
Does it matter whether the interim injunction is of a
prohibitory or mandatory nature?
Does Cyanamid provide fixed rules?
What are some of the exceptions?