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Injunctions Notes

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Injunctions General principles on which perpetual injunctions granted
? Curust Financial Services v Loewe Lack (SC)
? The parties entered a contract together pursuant to which the plaintiffs were exclusively entitled to deal in its products in Ireland.
? The defendant later sought to assign these rights to another party and the plaintiffs applied for a interlocutory injunction against them.
? Held that, since the loss that would occur to the plaintiffs pending the action would be clearly and exclusively a commercial loss, in what had been a stable and well
established market, it would prima facie be a loss capable of being assessed in damages (both past and potential future)
? Difficulty in assessing these damages (in contrast to complete impossibility) should not be a ground for holding that damages are an inadequate remedy.
? The question as to whether an injunction should apply save where the loss suffered is small applies to permanent rather than interlocutory injunctions.
? Sheridan v Louis Fitzgerald Group (HC)
? Plaintif sought an interlocutory injunction to restrain the defendant from granting to a third party the right to provide restaraunt and catering services at the defendant's public house, an activity which had previously been carried out by a company in which the plaintiff had an interest.
? Curust applied
? The plaintiff would be entitled to damages for any loss which he could establish would be likely to arise subsequent to the date of the assessment of damages.
? While there would be difficulties in making such an assessment, such difficulty fell far short of the complete impossibility identified in Curust - thus damages would be an adequate remedy and an interlocutory injunctioin would be inappropriate.
? Argyll v Argyll
? The plaintiff's immoral conduct led to her husband divorcing her.
? She later took an action against him to restrain a breach of confidence.
? Held that, a person coming to equity to relief must come with clean hands, but the cleanliness required is to be judged in relation to the relief that is sought.
? Thus, the immoral conduct in this case did not disentitle her to an injunction against her husband.
? Chappell v Times Newspapers (CA)
? Concerned a dispute between unions and employers in the newspaper industry
? Held that, he who seeks equity must do equity
? Thus plaintiffs had not been involved in any industrial action but refused to give undertakings sought by their employers not to engage in disruptive activities.
? Thus the court could refuse to grant an interim injunction on the grounds that the plaintiffs had failed to establish that they themselves intended to act equitably by abiding by the terms of ther contracts of employment.
? Shaw v Applegate (CA)
? The defendant had covenanted not to use property which he had purchased as an amusement arcade.
? The benefit of this covenant was assigned to the plaintiff, who sued for its breach a number of years after the breach began.
? Held that, to deprive the plaintiff of a legal right on the ground of acquiescence the situation must be such that it would be dishonest or unconscionable for him to continue to enforce it.
? Since in the years in question, the plaintiffs were confused as to whether there had been a breach of covenant it could not be said that they had been acting dishonest or

unconscionably, but given the expenditure made and goodwill built up by the defendant, the appropriate remedy was not an injunction but damages. Jurisdiction to award damages in lieu of an injunction
? Shelfer v City of London Electric Lighting Co.
? The plaintiffs sued the defendants in order to have an injunction served against the operation of their engines.
? Held that, it is good working rule that where the damage to the plaintiff's legal rights is A) small, B) capable of being estimated in money and C) can be adequately compensated in money and D) it would be oppressive to the defendant to award an injunction, then damages are the appropriate remedy.
? There may be cases, although the four requirements above exist, the defendant's conduct has disentitled himself from asking to be excused an injunction.
? In this case the requirements are met and an injunction should be awarded.
? Kennaway v Thompson
? The plaintiff purchased a house next to a manmade lake which was used by a boat club.
? She sued for an injunction to stop the nuisance caused by the club after they increased the frequency of their activities.
? Held that, in cases of continuing nuisance the jurisdiction to award damages ought to be exercised only under very exceptionable circumstances.
? The public interest in this case was not exceptional enough to prevail over private interests and the plaintiffs are entitled to an injunction.
? The injunction must balance the rights of the parties - a restriction on the size of the engines and a lessening in frequency will achieve this.
? Patterson v Murphy (HC)
? The plaintiff bought land adjoining a quarry which was a source of noise and dust.
? This resulted in shock to the plaintiffs and structural damage to their property, prevented them from sitting in their garden and eventually required them to leave and live in rented accommodation.
? Held that, when an infringement of the plaintiffs' right and threatened further material infringement has been established the plaintiff is prima facie entitled to an injunction - the plaintiff will only be deprived of an injunction in very exceptional circumstances.
? If the injury to the plaintiffs' rights is small and is one capable of being estimated in money and is one which can be adequately compensated by a small money payment and if the case is one in which it would be oppressive to the defendant to grant an injunction, then these are circumstances in which damages in lieu of an injunction may be granted.
? The conduct of the plaintiff may be such as to disentitle him to an injunction, while the conduct of the defendant may be such as to disentitle him from seeking the substitution of damages for an injunction.
? The mere fact that a wrongdoer is able and willing to pay for the injury he has inflicted is not a ground for substituting damages. Principles governing grant of interlocutory injunctions
? JT Stratford v v Lindley (HL)
? Traditional test: a strong prima facie case, i.e. a probability that he would succeed in his claim at the hearing of the action.
? American Cyanimid Co. v Ethicon (HL)
? The plaintiffs sought an interlocutory injunction restraining the defendants from selling a product which they claimed infringed one of their patents.
? Held that, the court must first assess whether there is a serious question to be tried - unless the evidence at the application for an interlocutory injunction establishes that the plaintiff has no prospect of success, the court should proceed to assess the case on the

??balance of convenience.
# The first step in assessing this balance is to examine whether any loss suffered by plaintiff between the application and the trial would be capable of being compensated for in damages and that the defendant would be capable of paying such damages - in such case no injunction should be granted.
# If the plaintiff establishes that this is not the case, then the court must examine whether the restraint imposed upon the defendant could be compensated by the paintiff - if this is so, then there is no reason not to grant the injunction.
# Where the inquiries above leave the court in doubt, the best course of action is to maintain the status quo. Campus Oil v Minister for Energy (SC)
? The plaintiffs refused to obey an order made by the defendants, claiming it was contrary to European law.
? The defendants sought an interlocutory injunction to have the plaintiffs abide by the terms of the order until the determination of the case.
? American Cyanimid applied.
? Held that, an applicant for an interlocutory injunction must establish first, that there is a bona fide question to be tried concerning the existence of a right which he seeks to protect or enforce by the injunction and secondly, that the balance of convenience lies in favour of granting the injunction.
? Since the order had been made by powers granted to the Minister by the Oireachtas, since it had not been found invalid and since the public loss occasioned by the failure of the scheme of the order was not quantifiable in damages, the balance of convenience lay in favour of enforcing the order - although it was unusual to grant an interlocutory injunction in a mandatory form, it was justified by the special circumstances of this case. Westman Holdings v McCormack
? The plaintiffs sought an injunction to prevent the defendants from picketing their premises.
? Held that, an interlocutory injunction was appropriate.
? While the damage that would otherwise be suffered would be merely pecuniary, the combination of the inability of individual defendants to pay damages and the possible immunity from suit of the trade union made it improbable that the plaintiff would be able to obtain compensation.
? On the other hand, the undertaking given by the plaintiff to compensate the defendants would be adequate to compensate their loss of wages and only their right to picket would remain uncompensated. Metro International SA v Independent News and Media (HC)
? Plaintiff sought an interlocutory injunction restraining the alleged infringement of a trademark.
? There was a serious issue to be applied and damages were found inadequate.
? Whether the adequacy of damages is contained in the assessment of the balance of convenience or whether it is a standalone test is more an issue of semantics than substance.
? In assessing the adequacy or otherwise of damages as a remedy the court should have regard to whether the right is normally one which it protects by injunction, though, in one sense, it might be thought capable of assessing the injury in monetary terms. G & T Crampton v BATU (SC)
? The plaintiff sought an injunction to prevent the defendants picketing his premises
? s. 19(2) of the Industrial Relations Act 1990 provides that once the plaintiff establishes an entitlement to an interlocutory injunction by showing that there is a fair question to be tried, the court must consider whether the defendants can establish a fair case that they were acting in furtherance of a trade dispute - if they can an injunction will not be


? Held that, the trial judge was entitled to find that the absence of an effective secret ballot prior to the strike meant that the conditions of s. 19(2) had not been satisfied. Malincross v BATU (HC)
? The plaintiff sought an interlocutory injunction to restrain picketing by the defendants at a building site, in circumstances where the employer with whom the defendants were in dispute no longer carried on business at the site.
? Held that, although there was secret ballot, it had not indicated the precise nature of the action to be taken, i.e. a picket of a site no longer operated by the employer, and thus there was a serious question as to whether such action had actually been authorised by the ballot - s. 19 required that the union must have the clear support of its members.
? Thus the case fell to be determined on the Campus Oil principles. Daru Bricklaying v BATU (HC)
? Industrial dispute - injunction sought.
? Held that, for the ballot to be valid, the entitlement to vote must accorded equally to all the members whom it was reasonable at that time for the union to believe would be called upon to enage in the industrial action.
? The onus lay on the defendants to prove that this had been done. Reynolds v Malocco (HC)
? The plaintiff sought an injunction to restrain the defendants from a publishing an article which he claimed was defamatory of him.
? Held that, Campus Oil is of wide, but not universal application - in a case such as this, the plaintiff must establish that there is no doubt that the publication complained of is defamatory.
? Furthermore, if the defendant intends to plead justification or any other recognised defence, normally an injunction of this type will be refused. Cogley v RTE (HC)
? The plaintiff sought to acquire an interlocutory injunction restrainging the publication of a documentary film, which alleged abuses in her nursing home.
? Held that, interlocutory injunctions to restrain publication of allegedly defamatory material will not be granted if it can be shown that there is reasonable basis for contending that the defendant will succeed at the trial of the action.
? Even in a case where it can be clearly shown that the defendant will not have a defence, the court retains a discretion not to grant the injunction having regard to all the circumstances of the case.
? In assessing whether to grant an interlocutory injunction restraining publication of material acquired in breach of privacy, the court must consider the context and circumstances in which the impugned methods were employed, any special public interest considerations in favour of broadcasting the programme and the adequacy of damages as a remedy for any wrong proved at trial.
? In this case, the significant public interest value of the material and the fact that damages would be tailored to the veracity of the accusations militate against the award of an injuction. Greene v Associated Newspapers (CA)
? Plaintiff sought and failed to received an interlocutory injunction against the defendant.
? The Court of Appeal held that in an action for defamation, a prior restraint order will not be imposed unless there is no possibility that the defendant will succeed. NWL v Woods (HL)
? Court held that where the practical effect of the order would be to decide the case, the degree of likelihood that the plaintiff would have succeeded at trial is a factor to be taken into account. Cayne v Global Natural Resources (CA)

The plaintiffs sought interlocutory injunctions restraining the defendant from allowing the merger of one of its subsidiaries with another company and from issuing shares to that company until the trial of the action, unless it first got the approval of its shareholders.
? Where the grant or refusal of such an injunction would have the 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 balance the risk of doing an injustice to either party.
? Since the grant of an injunction in such case would rob the defendant of his right to contest the plaintiff's claim at trial and (Eveleigh J) the defendant has substantiated its defence through affidavits and exhibits, it should not be granted.
? Were the plaintiffs to put forward an overwhelming case, it may be that the decision would be different.
? Kerr J
# It is only in cases where the plaintiff actually wishes to proceed to trial that the Cyanimid guidelines apply.
# That being the position the question is whether the plaintiffs can justify such a result at this stage and given that the defendants still have a fully arguable case, an interlocutory injunction should not be granted. Lansing Linde v Kerr (CA)
? The plaintiff sought an interlocutory injunction to enforce a provision in the defendant's contract with it, not to take up employment with a competitor of their's within 12 months of the termination of his employment with them.
? Held that, given the interlocutory injunction would decide the issue as the twelve months would have expired by the time the action came to trial it was not enough to ascertain whether there was a serious issue to be tried.
? In all the circumstances it was unlikely that the worldwide restraint in the contract would be upheld at trial and thus the trial judge was correct not to grant the injunction.?

Mandatory injunctions
? Redland Bricks v Morris (HL)
? As a result of the appellant's excavations on its lands a large pit was left on the respondents' lands.
? A injunction requiring the appellant to take all necessary steps to restore support to the respondents' lands was granted and this was appealed.
? Held that, mandatory injunctions are entirely discretionary and general principles for its application can only be set out in the most general of terms:
# it can only be granted where a plaintiff shows a very strong probability on the facts that grave damage will accrue to him in the future.
# it cannot be granted where damages would be a sufficient or adequate remedy if such damage does happen
# the cost to the defendant to carry out such actions must be taken into account:
? where the actions of the defendant are wanton or unreasonable, then the cost to him need not be proved proportionate to the benefit to the plaintiff
? where the actions of the defendant are wrong, but not unreasonable, then the cost to him must be carefully assessed because A) no legal wrong has yet occurred and B) if damage does occur in future, the plaintiff has all his remedies at law and equity.
# if a mandatory injunction is granted, then the court must be careful to see that the defendant knows exactly what he has to do
? In this case, the damage is certain and grave but the appellant has not behaved unreasonably and the order is too imprecise - thus the injunction must be set aside.

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