Révision Weeks 16, 17, 18, 19 Flashcards
Injunction
Judicial order to do/not to do something. An injunction is an order which restrains the performance or continuance of a wrongful act (prohibitory) or has the effect of requiring the performance of an act (mandatory).
Interim Injunction
Granted prior to trial. Obtained for a limited period of time only and will have effect only until a further order is made.
Interlocutory injunction
It has effect until the final hearing of action. Maintain status quo between the parties as far as possible.
Perpetual injunction
This will only be granted at the trial of the action where plaintiff has established a right and the actual or threatened infringement of that right by the defendant.
Quia Timet Injunctions
Injunctions granted in respect to wrongs which are apprehended or threatened (but have not happened yet). Versus other injunctions designed to prevent continuance of a wrong or guard against it happening again.
How to obtain injunction ?
Inadequacy or Inappropriateness of Damages as a Remedy:
To obtain an injunction, plaintiff has to show that right he was seeking to protect was something which damages would not leave him or her in as good a position as if they had been able to enforce the right.
Conduct of Parties
Discretionary considerations taken into account by a court in deciding whether to grant an injunction include:
- Conduct of the person invoking the jurisdiction of the court,
- And to a lesser extent, the conduct of the defendant.
Two maxims relevant: ‘he who comes to equity must come with clean hands’ and ‘he who seeks equity must do equity’.
Laches and Acquiescence
Court may also refuse to grant an injunction on the grounds of laches or acquiescence. Delay by itself unlikely to bar a claim for equitable relief but if coupled with other circumstances may lead to refusal of relief.
E.g. relating to the conduct of the plaintiff.
Effect on Third Parties
To what extent can the effect of granting an injunction on third parties be taken into account by the court?
Spry stated:
“It is not generally appropriate that specific private rights should be denied in order to give rise to an indefinite advantage to the general public.”
Specific Performance
- Judicial order compelling party to carry out a contractual obligation
- Damages is the traditional remedy for breach of contract. If D does not pay damages - P can sue again for permission to go onto the persons prop and take assets to sell
- Can get spec perf in addition or in lieu of damages. This is since amendment of Lord Cairns act (Chancery Amendment Act 1858 s2) + Collins v Duffy (2009)
- A breach of an order is contempt of court and failure to obey can lead to jail time
- Can get spec perf where damages are inadequate
When specific performance is awarded ?
When amages are inadequate:
- Objectively
- Unique about the goods or performance or unique art
- Or something that is not unique but there is no time to liquidate it in a timely manner
- Subjectively
- A person might seek sp perf as it is set out in contract as a remedy
- Sp perf is dependent on a valid, enforceable contract where a party has breached it or is about to breach it
-> Burden is on P to prove the contract is valid
-> Statute of frauds
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998]
Suggests that where contracts are negotiated between companies with big lawyers - a breach is not unethical
Blackmail
If courts ordered def to keep business open and their losses are larger than the Ps damages - concern that the threat of spec perf could be used by plaintiff as a bargaining chip to gain more of a remedy than they are entitled to
Redland Brick Ltd v Morris [1970]
For seeking a positive injunction, the plaintiff must show that the defendant acted “has acted wantonly and quite unreasonably in relation to his neighbour.”
Redland Brick Standard
- A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.
- Damages will not be a sufficient or adequate remedy if such damage does happen.
- Unlike the case where a negative injunction is granted to prevent the continuance or recurrence of a wrongful act[,] [and by contrast] the question of the cost to the defendant to do [positive] works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account:
a. Where the defendant has acted without regard to his neighbour’s rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the Court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff.
b. But where the defendant has acted reasonably, though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons.
- First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated.
- Secondly because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for, he has his action at law and all his consequential remedies in equity.
