#16949 - Interim Remedies - Principles of Civil Procedure

Jurisdiction to grant II relief based on three fundamental principles:

• (1) Available only for protecting recognisable rights (ie. no II where no likelihood of harm to legal/equitable right belonging to applicant and enforceable by final judgment)

• (2) Principle of provisionality: function of the jurisdiction is not to decide finally issues in dispute — only to protect rights from irreparable harm pending litigation

• (3) Principle of restorative compensation: if court finds that party restrained by II prevented from exercising rights, may seek to restore party to pre-II position

The dilemma: II is the “most flexible and far-reaching measure that the courts have at disposal”

• Court’s powers as wide in reach as extensive in consequences — without hearing on merits, Court may restrain almost any conduct/order almost any action regardless of whether such an order would be available at final judgment

  • Then: Tension between conflicting imperatives: (i) Due process and (ii) need to safeguard rights from harm pending litigation

    • Due process: Should not interfere freedom of action except by due process — entitles Respondent to insist that Applicant first prove entitlement to restraint

      • HOWEVER: During time it takes to comply with due process requirements, rights in dispute may be harmed to point of extinction

    • “Inescapable dilemma”: Should Court adhere to due process, which requires rights to be proved before enforced, or should act in the absence of proof?

      • Inevitable risk of harming rights (either claimant or defendant)

• THUS: Approach to the dilemma: Governing principle in relation to wide discretion: Court must strive to reduce risk of irreparable harm to rights

Principles governing grant of II

• No universal principle capable of producing satisfactory solution in all situations: acknowledge inevitable possibility that both grant and refusal could result in undue harm

  • Thus: only thing to be done is to minimise possible harmful consequences

    • Then: Method adopted in English law: balance of justice

The BASIC TEST: Balance of Justice

• Function of II jurisdiction = to safeguard rights from irreparable harm pending litigation

  • Factortame Ltd (No 2): Noting that injustice may be done either way — objective underlying principles by which discretion is to be guided always to ensure that the court chooses course which offers best prospect that eventual injustice will be avoided or minimised.”

  • American Cyanamid: To minimise prospect of injustice: (a) Plaintiff need for protection weighed against (b) Defendant need for protection

• Balance of justice hinges on two factors:

  • (1) Likelihood of harm occurring; and (2) Magnitude of possible harm.

  • Applicant must satisfy court that:

    • (i) He would be able to establish a right at trial (chances of success on merits); and

    • (ii) Unless Court assists, his right is likely to suffer irreparable harm in the interim.

  • Court must assess: chances of establishing alleged right + probability that right will suffer irreparable harm + magnitude of such harm — from perspective of both Plaintiff and Defendant — strike a just balance between the competing claims

(1) Likelihood of harm occurring (ie. relative chances of success — merits)

• SEE American Cyanamid; HOWEVER: Weakness— expansive exceptions that undermine justification “discrete but consistent erosion” of ban on merits

  • That merits are relevant considerations now “beyond doubt” — PC interpretation of American Cyanamid in National Commercial Bank Jamaica:

(2) The requirement of irreparable harm

• Court justified in granting II only if it is necessary to avoid irreparable harm

  • Lord Diplock in American Cyanamid: First consider whether, if Plaintiff were to succeed at trial, she would be adequately compensated by damages

    • If damages recoverable adequate remedy and Defendant in financial position to pay, no II should normally be granted

  • BUT: Meaning of “irreparable harm” unclear: “so elastic as to place little constraint on the court’s discretion”

• Different types of harms that may be considered irreparable:

  • (a) Irreparability due to uncertainty of quantification

    • Risk that harm impossible to calculate and thus impossible to award damages (ie. impossibility of accurately gauging extent of harm)

    • Distinguish between two types of uncertainty:

      • (i) Possible to place fairly robust certainty on chance or prediction then verify

      • (ii) Uncertainty is permanent and not removed by future event (inherent uncertainty — unknowable)

        • Eg. development of shopping centre delayed by II for three-years — impossible to estimate long-term economic consequences)

        • Where Court cannot assess risk of irreparable harm due to unknowable nature, only course is to assess merits of claims

  • (b) Irreparability for lack of adequate remedy

    • (i) Law provides no remedy for the harm

      • Eg. no compensation in law to person wrongly denied opportunity to vote

      • Unless Court acts in time to protect right, would disappear without a trace court decision on II effectively disposes of whole dispute

        • Since Court effectively giving final decision on merits, question of irreparability as a test of II has little significance

    • (ii) Compensation for harm possible but inadequate

      • Damages inadequate when it is unjust to expose party to risk of losing right and having right converted into right to damages

        • Common where right in question not normally valued just for economic worth (example: right to free expression)

      • Eg: Defamation — (a) risk that person may unjustly be defamed and (b) risk to right to free expression — (b) is more important

        • No II unless Applicant can show that she would win on the merits — otherwise, Court will not risk freedom of expression

      • More difficult situation — Cream Holdings

        • Conflict between (a) right to privacy and family life and (b) freedom of expression

        • RESPONSE:

          • (i) No ECHR right has priority over another ECHR right

          • (ii) In conflict, must bear in mind importance of free speech and protect unless strong countervailing considerations

            • In effect: all else being equal, protect freedom of expression

              • However: All else is not equal if serious risk to life, family/child welfare, or applicant is vulnerable

  • Problem of comparison: Economic vs value judgment: Balance of justice requires that expected loss be compared —common denominator not always possible

    • Difficulties where losses of different kinds or interest incommensurable

    • US: purely economic approach dominant (price tag on competing interests)

      • HOWEVER: “Debilitating defect” — absence of objective criterion for translating non-economic loss into money terms

        • eg: How to quantity: unknowable consequences of delayed commercial development; being separated from one’s child?

  • Suggestion: Rather than “are damages an adequate remedy”: Is it just, in all the circumstances, that the plaintiff should be confined to remedy in damages?”

EXAM HINT: Indeterminacy of Court in terms of exercising discretion — Is this a good or a bad thing?

Application for II to Restrain Publication — part. acute problem because conflict between: freedom of expression (Article 10) conflict with privacy/reputation (Article 8)

• Effect of the HRA: Court required to consider...