SA17 - Interim Injunctions

Question 1

What type of interim remedies are there?

Answer 1

interim injunction, interim declaration, order for detention, custody, preservation of property, search for property, taking sample of property, freezing injunction.

Question 2

When may an interim remedy be done?

Answer 2

At any time - before proceedings or after judgement.

Question 3

What if there has already been a final remedy sought?

Answer 3

This must be stated in the claim form.

Question 4

What happens to an interim remedy if someone is acting in the capacity of a representative?

Answer 4

It will be binding on all parties.

Question 5

When can an interim injunction be made without notice?

Answer 5

If it is urgent.

Question 6

What duty does an interim injunction carry?

Answer 6

The duty of full and frank disclosure to highlight any facts, law or procedural issues even if adverse to their case.

Question 7

What is the definition of interim injunction?

Answer 7

This is a court order requiring a party to either refrain from an act or carry out an act.

Question 8

What is a perpetual injunction?

Answer 8

An injunction which is granted at trial after the claimant has established their case.

Question 9

What is an interlocutory injunction?

Answer 9

Any order, other than a final judgment.

Question 10

When can a court grant an interim injunction (criteria)?

Answer 10

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.

Question 11

What are the features of an interim injunction?

Answer 11

Can Be conditional or unconditional.

Question 12

What guidelines must be considered of an interim injunction?

Answer 12

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.

Question 13

What is an interim declaration?

Answer 13

It is a final remedy at trial or on a preliminary issue in interim proceedings.

Question 14

When must interim declarations be made?

Answer 14

Proceedings against the crown.

Question 15

What factors must be considered if an interim injunction is made before proceedings?

Answer 15

It should only be if matter is urgent/in the interest of justice, directions will be given on how to commence a claim.

Question 16

How does someone apply for an interim injunction?

Answer 16

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.

Question 17

What can happen if D breaches interim injunction?

Answer 17

May be sent to prison.

Question 18

When can a court refuse to grant an interim injunction?

Answer 18

If the applicant cannot establish an arguable case for a wrong he has or will commit.

Question 19

What are the principles needed to be used to determine whether to grant an interim injunction?

Answer 19

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?

Question 20

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?

Answer 20

Usually as interim injunctions are urgent, there is going to be incomplete information, the smaller details are for trial.

Question 21

What should be considered in the first stage of American Cynamid, is there a question to be tried?

Answer 21

That there is a serious question to be tried which is not fanciful.

Question 22

What if the judge is uncertain in the first stage of American Cynamid?

Answer 22

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.

Question 23

What happens if there is a pending appeal?

Answer 23

Interim injunction can still be granted if still seeking to restrain irreversible harm pending appeal.

Question 24

What is a Quia Timet application?

Answer 24

Threatened or imminent but haven’t yet commenced.

Question 25

What must be proved in a Quia Timet application?

Answer 25

Must be imminent breach and proof that damage would be substantial.

Question 26

What should the court not do when considering interim injunction?

Answer 26

Not express whether case has merit but it should try dispose of issues early.

Question 27

What should be considered in the second stage of American Cynamid, would damages be adequate?

Answer 27

If damages are adequate remedy, do not grant interim injunction - if it is not adequate, court should grant interim injunction.

Question 28

What should be considered in the second stage of American Cynamid, if there is a contractual clause about damages?

Answer 28

If there is already a contractual clause outlining damages, the does not rule out the injunction.

Question 29

What should be considered in the second stage of American Cynamid, if cannot decide whether damages would be adequate?

Answer 29

Move to the next stage of assessing where the balance of convenience lies.

Question 30

What does balance of convenience mean?

Answer 30

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.

Question 31

What should be considered in the third stage of American Cynamid, if cannot decide?

Answer 31

Court should take action based on preserving status quo (current issues) and the relevant strength of each party's case.

Question 32

Why should the court be in favour of granting sometimes?

Answer 32

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.

Question 33

What is a mandatory injunction?

Answer 33

Require positive action to be undertaken to put wronged party in position they were in before breach.

Question 34

When will a mandatory injunction be granted?

Answer 34

Sometimes preemptively if there is no remedy in law.

Question 35

What test must be applied for a mandatory injunction?

Answer 35

1. 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.

Question 36

What is an undertaking?

Answer 36

A general voluntary promise to the court.

Question 37

What is a cross undertaking?

Answer 37

A specific promise to the court, usually to pay damages to D, if injunction is later found to be unjustified.

Question 38

Can a court vary an undertaking?

Answer 38

No

Question 39

What happens if party is absent to hearing of interim injunction?

Answer 39

A return date will be set to come back.

Question 40

What can be granted instead of an interim injunction?

Answer 40

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.

Question 41

What happens if parties want to be released from undertaking?

Answer 41

Must make a new one replacing the old one. The court has discretion to accept new undertaking or may attach a condition to it.

Question 42

Can an undertaking be appealed?

Answer 42

No, unless extraordinary circumstances.

Question 43

Can a court compel a Claimant to provide an undertaking?

Answer 43

No, but court can refuse to grant injunction if applicant is unwilling to provide it.

Question 44

Who can enforce a cross undertaking?

Answer 44

Any party, even a party not to proceedings.

Question 45

What if the applicant is unable to offer a credible undertaking?

Answer 45

if the applicant for an interim injunction is of limited means/value is low, this will not prevent a court from granting application.

Question 46

How can it be proven that party is unable to offer credible undertaking?

Answer 46

Onus is on applicant to demonstrate funds are not available and explain why they should pay less.