#14959 - Interim Remedies - Principles of Civil Procedure

Interim Remedies – Interim Injunctions

• General rule – no security for judgment in UK law

• BUT

  • Interim injunctions –

  • Freezing injunctions –

Interim injunctions

Interim/preliminary/interlocutory injunction – order that the parties do or refrain from doing something to maintain the rights of the parties pending proceedings

Fundamental features

• Sought to protect existing right

• Temporary not final

• Mechanism for enforcement – contempt

Tension – due process v protection of rights

• Order sought before hearing

• Process rights v substantive rights – if court insists on due process, no meaningful protection for substantive rights

Resolution of tension – test

• Maintain status quo – says nothing about correct balance between C&D’s rights

  • Eg injunction in relation to strike – whether strike has commenced or not arbitrarily determines nature of status quo

• Balance of convenience – Whether one right can be adequately compensated or is threatened by irreparable damage – quantification of damage to rights

  • If granted, would require undertakings as to harm if substantive action fails/is abandoned

    • Damage is irreparable also if D wouldn’t have capacity to pay damages

  • Where two non-monetary harms – difficult to quantify & compare – need normative comparator

    • Defamation cases – ECtHR says arts 8&10 (privacy & freedom of expression) of equal weight

      • BUT even within 8&10 context, harm on each side may differ according to the context: Cream Holdings

  • Even where monetary damage – difficult to quantify magnitude of consequential harm

  • Public interests outweigh private rights unless high prospects of success – Green v Associated Newspapers (defamation action)

    • BUT where harm to C is very high, then no such requirement

    • Public interest doesn't belong to the parties – does it include climate change, other environmental concerns?

• Prospects of success

  • BUT don’t have all the evidence available

• Prospects of success x magnitude of harm = measure most likely to reduce harm to rights

  • BUT mathematical exercise ignores that

    • Can’t properly ascertain probability of success

    • Can’t quantify harm if it is irreparable and can’t be adequately addressed by compensation

• Role for overriding objection

  • American Cyanamid v Ethicon [1975] AC 396 (C made synthetic stitches – C sought to restrain D from patent infringement – potential harm to market share – difficult to compensate as difficult to reverse set down test with regard to merits, but has since been watered down by exceptions)

• Q – person who lives in building where Charlie Hebdo produced concerned about potential attacks – threat to life contrary to Art 1 – protection of family life under art 8 so can’t be forced to move – seek injunction for personal safety

Undertakings for damages

• Undertaking to the Court to abide by any order to compensate for damages suffered as a consequence of the injunction

  • 3Ps who have incurred damages as a result of the injunction can’t piggyback on undertaking

    • EG sub-vendors of patented material subject to injunction

• Rationale

  • Balance – interim injunction protects applicant’s rights // undertaking protects respondent’s rights

  • = equality before the law

• Enforcement – Court can decide whether to enforce & quantum

  • If applicant goes on to be successful – no discretion to deny damages – although could be reduced by principles of contract

    • Eg failure of defendant to mitigate losses

  • No relevant difference in this respect between interim & substantive final damages

• Measure – contract – putting party in same position they would have been in had injunction not been granted

  • Damages have to be foreseeable, etc

• Air Express (HCA) (D applied to Minister for licence to import aircraft – C thought that had exclusive rights to import – sought injunction against Minister to prevent from granting licence – interim injunction granted – undertaking granted – action failed – D applied to enforce undertaking

  • Resisted on ground that have to show causal relationship between injunction & harm – no causation because no licence would have been granted anyway, because M would have awaited outcome

  • Reasoning

    • Court – ‘but for’ causation – Minister wouldn’t have granted anyway

    • AZ Evidentiary objection – if they sought injunction, must be because Minister would have granted licence

    • Causation – should Cs have benefit of uncertainty created by their litigation?

• Oxy-Electrics (enforcement of restrictive covenant against builders of mosque – would raise property costs & rent – Ds risked rise in building costs – applied for order requiring undertaking for damages

  • Ds in difficult situation – risk of having to knock building down <> risk of rising building costs

  • D shouldn’t be able to put risk onto C

• Germany – flexible approach – security can make up for substantive requirements for interim injunction

  • EG injunction can be granted if A can pay money into court for damages, even if no prima facie case

  • BUT

    • Limits to amount of bond

    • Also allows justice to be bought

Dispensation of requirement for undertaking for public bodies:

• Curtley’s (?) Borough Council (enforcing no-Sunday trading laws – DIY store contending laws invalid as contrary to EU freedoms – Council sought injunction)

  • Arguments to dispense

    • Chilling effect on enforcement of law

      • BUT why confined to public bodies?

    • Public monies are for pursuing public ends, not compensating private losses

      • BUT undermines accountability of government – eg compensation for medical negligence in public hospitals

  • Shouldn’t be able to get dispensation

    • Public right protected by injunction – private right should be protected by undertaking

    • Public bodies have responsibility to establish properly funded statutory authorities & suffer electoral consequences

    • Public bodies still pay costs

  • Public bodies enforcing private law rights can’t get dispensation

• Q – any difference between public & private actors enforcing public rights?

Impecunious litigants

• Factor in determining balance of convenience – must determine whether in a position to pay

  • Diplock LJ in American Cyanamid – Adequacy of damages = quantifiable + D can pay

  • But has since established that impecuniosity not conclusive

    • Apple Corps – Megarry LJ

• In particular – Environmental judicial review

  • Impecunious applicant may be refused injunction & environmental damage might occur

  • Previously – needed undertaking despite public right

  • Has been corrected by amendments to rules

  • Member States required by convention to create procedure that allows applicants to easily bring claims – eg free from excessive costs, undertakings, etc

    • Can get cost capping orders

• Allan Jumbo Holdings (propeller injury at work – killed worker – family sued owner – sought mareva order restraining plane to jurisdiction/security – Ds replied that would incur significant costs keeping plane in country, and in any event had plenty of assets to satisfy judgment Denning LJ refused argument – security for judgment could be provided (?))

  • Impecuniosity not a reason for dispensing with undertaking – only a factor in balance of justice

Without notice applications

• Generally notice is...