Injunctions

CLS 223-Equity and the Law of Trusts

Introduction
• A court's order directing a party to the proceedings to do something
or not to do something is known as an injunction.
• It is given when monetary compensation would not adequately heal
the harmed party.
• There are several types of injunctions:
• 1. Prohibitory Injunction;
• 2. Mandatory Injunction;
• 3. Perpetual Injunction;
• 4. Interlocutory Injunction; and
• 5. Quia Timet or Anticipatory Injunction.
Prohibitory Injunction
• Because someone is forbidden or limited from performing a specific
conduct, something is restrictive. If someone has begun an act, they may
be commanded to stop.
• This is an order that prevents someone from committing a crime or from
continuing to do so.
• These injunctions are significantly more frequent than those that are
mandatory.
• Therefore, in a jurisdiction that typically prioritizes substance over form,
a court seeking to ensure the removal of buildings that were unlawfully
erected may order the defendant to prohibit them from remaining on
the property.
Mandatory Injunctions
• This is an injunction to restrain continuance of some wrongful
omission.
• A mandatory injunction is made in a positive form, ordering some act
to be done.
• It is divided into:
• i) Restoration Mandatory Injunctions require the defendant to
undo a wrongful act, to restore the status so that the damage does
not continue.
• ii) Mandatory Injunction proper – this compels the defendant to
carry out some positive act to remedy a wrongful omission.
Perpetual Injunction
• A perpetual injunction can be granted for the lifetime of the plaintiff.
• The perpetual injunction is so called because it is granted at the final
determination of the rights of the parties.
• It is not called perpetual because it will operate forever; perpetual
relates to the fact that the court will finally settle the dispute between
the parties.
• A perpetual injunction is granted only after the claimant has
established his right and the actual or threatened infringement of it
by the defendant.
Interlocutory Injunction
• It is also called temporary, interim or ex-parte.
• An interlocutory injunction is granted before the hearing of the
main suit or before the determination of the main suit.
• Its purpose is to maintain the status quo until the matter is finally
determined.
• It is quite common in relation to land matters.
• An interlocutory (or interim) injunction is granted before the trial
of an action; its object is to keep matters in status quo until the
question at issue between the parties can be determined.
• Accordingly, the claimant may obtain it without making out a case
which will necessarily entitle him to a perpetual injunction.
Interlocutory injunction
• When the plaintiff is serving the main suit, he will also serve the
defendant telling him that by the time the matter comes up for
hearing, he will be making an application for an interlocutory
injunction.
• The decision that the court makes on the interlocutory injunction is
not be based on the merit of the case; the merit is left for the hearing
of the main suit.
• Ex parte Injunction is granted without hearing the other party.
• It will only last until the next motion day.
Interlocutory injunction
• An interim injunction, unlike ex parte injunction, restrains the
defendant until some specified date.
• After the ex parte injunction is lifted on the motion day, a plaintiff
may apply for an interim injunction to last until a specified date and
usually it does not last more than 14 days.
• It is usually timed to allow the defendant time to go and prepare for
the case.
Quia Timet or Anticipatory Injunction
• This type of injunction is granted to prevent a threatened infringement
of the Plaintiff‘s rights.
• There are signs that infringement will occur but the rights have not
been infringed yet.
• One applies for an anticipatory injunction (Quia Timet) in anticipation
that some certain right is about to be infringed.
• This also occurs where the claimant has been fully recompensed for the
• damage already suffered but alleges that there is a risk that further
damage may occur, as where the defendant has carried on operations
on his land which imperil the stability of his neighbour‘s land.
Grounds for grant of anticipatory injunction
• The plaintiff must show a very strong probability of a future
infringement;
• The Plaintiff must show that the danger is imminent;
• The Plaintiff must show that it will cause substantial or irreparable
damage and that an award of damages will not be a sufficient or
adequate remedy; and
• The Plaintiff must show that the damage will be of a most serious
nature.
General rules for grant of perpetual injunction
• The very first principle of injunction law is that prima facie you do
not obtain injunctions to restrain actionable wrongs for which
damages are the proper remedy.
• Thus no injunction will be granted where an illegal act has been
done in the past but there is no intention of repeating it, or
where the injury can be adequately compensated by money.
• But an injunction may be granted if an award of damages would be
useless e.g. because the defendant is a pauper, and many wrongs
such as continuing nuisances or infringements of trademarks, demand
more adequate relief than money.
General rules for grant of perpetual injunction
• The plaintiff must establish a right.
• The party who seeks an injunction must have a cause of action
which includes statutory as well as private rights of action justifiable
before the court.
• This general rule cuts across the board that is in relation to
other branches of law.
• This right can be a legal right or it can be an equitable right, if it
is for mere convenience, the court will not grant an injunction.
General rules for grant of perpetual injunction
• Discretion - A party who establishes his right and its violation will
be entitled to an injunction.
• Although the court has a discretion whether to grant or
withhold an injunction, an order to restrain the breach of a contract
may be obtained almost as of right.
• Nominal Damage – the fact that the Plaintiff has suffered nominal
damage does not mean that he should be refused a remedy. If the
court decides that you have suffered nominal damages, the court
will exercise its discretion to grant an injunction.
General rules for grant of perpetual injunction
• Compliance - Where a party claims that compliance will be
difficult or impossible although the plaintiff has established a
violation of her right or has established damage the injunction
will not be issued because the equity does not act in vain.
• Annoyance may have ceased - If the annoyance has ceased before
the trial or if it is just temporary and not intended to be
repeated, the court can exercise discretion and refuse to grant
the injunction.
General rules for grant of perpetual injunction
• The defendant can give an undertaking - the defendant may give an
undertaking to the court to abstain from the acts that are
complained of by the Plaintiff.
• This undertaking is equivalent to an injunction and if the
defendant breaches the undertaking it is taken in the same way as
a breach of a proper injunction or as contempt of court.
General rules for grant of perpetual injunction
• Unreasonableness-An injunction may also be refused where the
claimant has a remedy available in his own hands, e.g. refusing to
supply goods to defendants in breach of contract.
• Inadequacy of Damages: The courts have held that in certain
circumstances damages will be inadequate and therefore the only
remedy to grant is the perpetual injunction.
General rules for grant of perpetual injunction
• Continuing Nuisance - the nature of a continuing nuisance is
that this annoyance will never cease.
• In Martin v. Nutkin (1724) 2 P. Wins. 266 the plaintiffs were
annoyed by the daily ringing of a church bell at 5 am.
• The church agreed to stop the ringing of the bell during the lives of
the Plaintiffs, as long as the plaintiffs provided the church with a
new clock and bell.
• The Church rang that bell in breach of the agreement and the
plaintiffs went to court seeking a perpetual injunction-granted.
General rules for grant of perpetual injunction
• Conduct of the Plaintiff-if the plaintiff is guilty of delay, she will not
get a perpetual injunction, if she has come to court with unclean
hands, if she is guilty of acquiescence she will not get the remedy of
injunction because her conduct is wanting.
• Locus Standi and Public Rights-The Attorney General can obtain
orders for the protection of public rights.
• In Attorney General v. Chaudhry[1971] EWCA Civ J0708-3 , a hotel
was operating without a fire certificate and therefore posing a
danger to the public.
• The Attorney General applied for an injunction against that hotel and it
was granted.
Can an individual seek an injunction for violation of a
public right created by statute?
• According to Lonrho v. Shell Petroleum Ltd. (1982) A.C. 1973:
• The individual must show that the infringement of the public right
has infringed some private right;
• The individual must also show that the infringement has inflicted
special damage on him or her;
• The individual must show that he or she is a member of a class for
whose benefit the statute was passed.
• Public right is the province of the AG only.