INTERLOCUTORY INJUNCTIONS

An Interlocutory Injunction is relevant where the trial is some distance into the future
but the rights of the parties must be regulated in the interim. The principles underlying
this injunction take into account the respective rights of the parties, the nature and
strength of the repective cases, the likely result, the lossess likely to be suffered by
either party while the injunction is in effect, whether damages are adequate to the
plaintiff’s case etc.

Ansah v. Ansah [1977] 2 ALL ER: The parties were married in 1973 and had two
children. The marriage was stormy. The wife finally left the husband on 7th April
1976. On 13th April she applied for an injunction to restrain the husband from
molesting her or the children and for an order that the husband should vacate the
matrimonial home. By consent an injunction limited to restraining molestation was
granted. The wife presented a petition for divorce which contained serious allegations
of violence against the husband. The husband put in an answer denying the allegations
and the suit was transferred to the High Court. On 23rd June the wife applied to
commit the husband to prison for breach of the injunction of 13th April but the parties
came to terms; the wife withdrew the summons to commit and the husband said he
would withdraw his answer to the petition and consented to the wife having custody of
the children. Agreement was also reached on the disposal of the matrimonial home.
Subsequently the husband repudiated the terms of that agreement except as to the
abandonment of his answer. The wife placed the children with foster parents. On 13th
September the husband applied, ex parte, to a county court judge for an injunction to
restrain the wife from returning to or entering the matrimonial home and/or assaulting
or molesting the husband. The husband filed evidence in support of the application
that the wife had threatened to burn his clothes, had broken glass in the front door of
the house and had abused him. The judge granted an injunction in the terms asked for
'until the further hearing of the application... at the Royal Courts of Justice, London at
the time and place to be notified'. On 13th September the wife's petition and the
husband's answer were still proceeding in the High Court. In breach of the injunction
of 13th September, the wife on a few occasions visited the matrimonial home to look
after her father who was staying there on holiday and also visited the home on one
other occasion to collect the children who had been taken there by the husband from
the foster parents without the wife's consent; on that occasion there was a row between
the husband and wife and it appeared that the husband had in consequence sustained
minor injuries. On 20th October the husband applied to a deputy High Court judge to
commit the wife to prison for breach of the injunction of 13th September. The judge
made a committal order but suspended it on condition that the wife complied with the
terms of the injunction of 13th September. The committal order provided that on filing
evidence that the order had been served on the wife and that she had failed to comply
with the injunction of 13th September, the committal order was to be executed without
further notice to the wife. On 29th October an order was made in the High Court
staying the prayer of the husband's answer and transferring the cause back to the
county court. The wife appealed against both the injunction of 13th September and the

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suspended committal order of 20th October.
Held - The appeals would be allowed for the following reasons – (i) An ex parte
injunction in matrimonial proceedings should be granted only in an emergency where
the interests of justice or the protection of the applicant or a child clearly demanded
the court's immediate intervention and should therefore be granted extremely rarely,
particularly as an urgent application for an injunction could be heard inter partes on
two days' notice being given to the other side. The evidence filed by the husband in
support of his ex parte application, having regard to the background of the marriage,
fell far short of justifying the grant of an interim injunction. Moreover, if an ex parte
injunction were to be granted, to avoid injustice it should be limited to the period
required to arrange a preliminary hearing inter partes, which normally would be a
period measured in days although a longer period might be fixed if difficulty in
serving the other party was anticipated, when, the order should provide that the other
side could apply to discharge the injunction on giving 24 hours' notice. The injunction
should also specify the date on which it expired. Accordingly, as the grant of the ex
parte injunction on 13th September had not been justified and the formula fixing the
duration of the injunction had been improper, since it did not specify the date of expiry
of the injunction, the injunction was void ab initio and would be discharged. In any
event the county court judge had no jurisdiction to grant the injunction because at the
time it was granted the suit was still proceeding in the High Court and the application
should therefore have been made to a High Court judge (see p 641 j and p 642 b to j,
post). (ii) A committal order in family cases should be a remedy of last resort and
should be made only where every other effort to bring the situation under control had
failed or was likely to fail. Accordingly, even assuming that the injunction of 13th
September had been validly made, in the circumstances it was not an appropriate case
for making any kind of committal order against the wife and the committal order, also,
would be discharged (see p 643 a to d, post). Per Curiam. The practice of making
suspended committal orders, though effective in some cases, could be dangerous.
Careful consideration should be given to the question in what circumstances and how
the suspension is to be removed and the committal order activated. The terms of
suspension in the instant case were such that control had passed out of the judge's
hands altogether and the party subject to the order had no means of disputing any
alleged failure to comply with the terms of the suspension. It would have been safer to
have adjourned the summons to commit with liberty to restore in the event of further
breach by the wife of the injunction of 13th September or of a term imposed by the
court at the hearing of the summons to commit.

Practice Note [1978] 2 All ER.

J.T. Stratford & Son Ltd. v Lindley [1964] 3 All ER: In 1963 B Ltd having previously
rejected joint invitations of the Transport and General Worker’s Union and of the
Waterman, Lightermen, Tugmen and Bargemen’s Union to negotiate terms and
conditions of employment, came to agreement in negotiation with the Transport Union
alone, the Watermen’s Union not being informed of these negotiations. The agreement
covered terms and conditions of service of all B, Ltd’s union employees, forty-eight in
number, of whom forty-five belonged to the Transport Union and three belonged to

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the Watermen’s Union. Having learnt of this agreement, the Watermen’s Union,
whose officers the respondents were, knowing that S was chairman of S Ltd a
company that controlled B Ltd as well as chairman of B Ltd struck at S, Ltd by
placing an embargo on their union’s members handling barges of S, Ltd. S Ltd did not
employ any member of either union. S Ltd owned and hired out barges and repaired
barges. The hirers of barges employed lighterman to take charge of the barges, to
deliver cargo and to return the barges to S, Ltd. Master lightermen had allocated to
them waterman dock workers under the Dock Workers (Regulation of Employment)
Scheme, 1947. As result of the embargo S Ltd were immobilized, barges were not
brought for repair, and S Ltd were caused heavy financial loss, which, if damages in
respect of it were recoverable, the respondents would be unable in fact to pay, so that
the damage would be irreparable. S Ltd brought an action against the respondents and
obtained an interlocutory injunction. On appeal by the present respondents the
injunction was discharged and, though the embargo was not re-imposed, no
undertaking was given that it would not be re-imposed. On further appeal by S, Ltd.
Held – (i) S Ltd had made out a prima facie case that the respondents, with sufficient
knowledge of the barge-hiring contracts, either (per Lord Reid and Viscount
Radcliffe) had induced by unlawful means (viz, by the refusal of the union’s members
in breach of their contracts with the master-lightermen, to whose employment they
were allocated pursuant to the Dock Labour Sheme to handle the S, Ltd’s barges)
breaches by barge-hirer customers of their contracts with S Ltd (eg, by failing to return
barges to S Ltd at the conclusion of hirings), or (per Lord Pearce and Lord Upjohn, of
per Lord Donaldson) had induced such breaches without lawful justification, and on
either view, had thereby inflicted loss on S Ltd; accordingly S, Ltd. were prima facie
entitled to recover on the principle of Lumley v Gye damages for the wrong done to
them by the respondents. (ii) the respondents (on whom the onus rested in this respect)
had not made out a prima facie case that they had been acting in furtherance or
contemplation of a trade dispute within s. 5(3) on the Trade Disputes Act, 1906, for
the only controversy that appeared was between one union and another, and thus the
respondents were not protected by s. 3 of the Act, further (per Lord Pearce) as the
barge-hiring contracts were not contracts of employment, s 3 did not protect the
respondents from liability for inducement of their breach. (iii) an interlocutory
injunction against the continuance of the wrong would be granted to preserve the
status quo if S Ltd succeeded in the action. Lord Upjohn: …An appellant seeking an
interlocutory injunction must establish a prima facie case of some breach of duty by
the respondent to him. He may even obtain a quia timet injunction in case of an actual
breach has been established. He must further establish that the respondents are
threatening and intending to repeat that breach of duty, but in a case such as this it
may readily be inferred and I do so I n case. This being so, an injunction may be
granted if it is just and convenient in these cases is always of great importance and
here everything points one way. If the status quo, that is the situation as it was before
the issue of the instruction, is preserved the respondents suffer no immediate loss at all
and, if they ultimately win, they gain their point and can re-impose the embargo. On
the other hand while the embargo was operating the appellants, on the evidence,
suffered a heavy loss of 1000 a week, which they will never recover from the
respondents. Plainly it is just and convenient to order an interlocutory injunction to

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preserve the status quo until judgment in the action so as to prevent further
interference by the respondents with the contracts now made by the appellants with
their customers on which they may make with their customers in the future before
judgment in the action. I cannot accept the argument that an argument that an
injunction ought in some way to be limited so as to effect only existing contracts; such
a limitation would fail to give the appellants the protection, to which they have
satisfied me that they are entitled, of preserving the status quo until judgment so as to
enable them to carry on business in the usual way by entering into new contracts from
time to time with their customers.

American Cyanimid Co. v Ethicon Ltd. [1975] AC: The plaintiffs, an American
company, owned a patent covering certain sterile absorbable surgical sutures. The
defendants, also an American company, manufactured in the United States and were
about to launch on the British market a suture which the plaintiffs claimed infringed
their patent. The defendants contested its validity on divers grounds and also
contended that it did not cover their product. In an action for an injunction the
plaintiffs applied for an interlocutory injunction which was granted by the judge at
first instance with the usual undertaking in damages by the plaintiffs. The Court of
Appeal reversed his decision on the ground that no prima facie case of infringement
had been made out. On the plaintiffs appeal: Held, allowing the appeal, (1) that in all
cases including patent cases, the court must determine the matter on a balance of
convenience, there being no rule that it could not do so unless first satisfied that, if the
case went to trial on no other evidence than that available at the hearing of the
application, the plaintiff would be entitled to a permanent injunction in the terms of
the interlocutory injunction sought; where there was a doubt as to the parties'
respective remedies in damages being adequate to compensate them for loss
occasioned by any restraint imposed on them, it would be prudent to preserve the
status quo (post, pp. 321E, H-322A, H-323A, G-H). (2) That in the present case there
was no ground for interfering with the judge's assessment of the balance of
convenience or his exercise of discretion and the injunction should be granted
accordingly. Lord Diplock: My Lords, when an application for an interlocutory
injunction to restrain a defendant from doing acts alleged to be in violation of the
plaintiff's legal right is made upon contested facts, the decision whether or not to grant
an interlocutory injunction has to be taken at a time when ex hypothesi the existence
of the right or the violation of it, or both, is uncertain and will remain uncertain until
final judgment is given in the action. It was to mitigate the risk of injustice to the
plaintiff during the period before that uncertainty could be resolved that the practice
arose of granting him relief by way of interlocutory injunction; but since the middle of
the 19th century this has been made subject to his undertaking to pay damages to the
defendant for any loss sustained by reason of the injunction if it should be held at the
trial that the plaintiff had not been entitled to restrain the defendant from doing what
he was threatening to do. The object of the interlocutory injunction is to protect the
plaintiff against injury by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty were resolved in
his favour at the trial; but the plaintiff's need for such protection must be weighed
against the corresponding need of the defendant to be protected against injury

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resulting from his having been prevented from exercising his own legal rights for
which he could not be adequately compensated under the plaintiff's undertaking in
damages if the uncertainty were resolved in the defendant's favour at the trial. The
court must weigh one need against another and determine where "the balance of
convenience" lies. In those cases where the legal rights of the parties depend upon
facts that are in dispute between them, the evidence available to the court at the
hearing of the application for an interlocutory injunction is incomplete. It is given on
affidavit and has not been tested by oral cross-examination. The purpose sought to be
achieved by giving to the court discretion to grant such injunctions would be stultified
if the discretion were clogged by a technical rule forbidding its exercise if upon that
incomplete untested evidence the court evaluated the chances of the plaintiff's ultimate
success in the action at 50 per cent. or less, but permitting its exercise if the court
evaluated his chances at more than 50 per cent. The notion that it is incumbent upon
the court to undertake what is in effect a preliminary trial of the action upon evidential
material different from that upon which the actual trial will be conducted, is, I think,
of comparatively recent origin, though it can be supported by references in earlier
cases to the need to show "a probability that the plaintiffs are entitled to relief"
(Preston v Luck (1884) 27 Ch.D. 497, 506 per Cotton L.J.) or "a strong prima facie
case that the right which he seeks to protect in fact exists" (Smith v Grigg Ltd [1924] 1
KB 655, 659 per Atkin L.J.). These are to be contrasted with expressions in other
cases indicating a much less onerous criterion, such as the need to show that there is
"certainly a case to be tried" (Jones v Pacaya Rubber and Produce Co Ltd [1911] 1 KB
455, 457 per Buckley L.J.) which corresponds more closely with what judges
generally treated as sufficient to justify their considering the balance of convenience
upon applications for interlocutory injunctions, at any rate up to the time when I
became a member of your Lordships' House. An attempt had been made to reconcile
these apparently differing approaches to the exercise of the discretion by holding that
the need to show a probability or a strong prima facie case applied only to the
establishment by the plaintiff of his right, and that the lesser burden of showing an
arguable case to be tried applied to the alleged violation of that right by the defendant
(Donmar Productions Ltd v Bart (Note) [1967] 1 WLR 740, 742 per Ungoed - Thomas
J., Harman Pictures N.V. v Osborne [1967] 1 WLR 723, 738 per Goff J.). The
suggested distinction between what the plaintiff must establish as respects his right
and what he must show as respects its violation did not long survive. It was rejected by
the Court of Appeal in Hubbard v Vosper [1972] 2 QB 84 - a case in which the
plaintiff's entitlement to copyright was undisputed but an injunction was refused
despite the apparent weakness of the suggested defence. The court, however, expressly
deprecated any attempt to fetter the discretion of the court by laying down any rules
which would have the effect of limiting the flexibility of the remedy as a means of
achieving the objects that I have indicated above. Nevertheless this authority was
treated by Graham J. and the Court of Appeal in the instant appeal as leaving intact the
supposed rule that the court is not entitled to take any account of the balance of
convenience unless it has first been satisfied that if the case went to trial upon no other
evidence than is before the court at the hearing of the application the plaintiff would
be entitled to judgment for a permanent injunction in the same terms as the
interlocutory injunction sought. Your Lordships should in my view take this

5
opportunity of declaring that there is no such rule. The use of such expressions as "a
probability," "a prima facie case," or "a strong prima facie case" in the context of the
exercise of a discretionary power to grant an interlocutory injunction leads to
confusion as to the object sought to be achieved by this form of temporary relief. The
court no doubt must be satisfied that the claim is not frivolous or vexatious; in other
words, that there is a serious question to be tried. It is no part of the court's function at
this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts
on which the claims of either party may ultimately depend nor to decide difficult
questions of law which call for detailed argument and mature considerations. These
are matters to be dealt with at the trial. One of the reasons for the introduction of the
practice of requiring an undertaking as to damages upon the grant of an interlocutory
injunction was that "it aided the court in doing that which was its great object, viz.
abstaining from expressing any opinion upon the merits of the case until the hearing":
Wakefield v Duke of Buccleugh (1865) 12 L.T. 628, 629. So unless the material
available to the court at the hearing of the application for an interlocutory injunction
fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a
permanent injunction at the trial, the court should go on to consider whether the
balance of convenience lies in favour of granting or refusing the interlocutory relief
that is sought. As to that, the governing principle is that the court should first consider
whether, if the plaintiff were to succeed at the trial in establishing his right to a
permanent injunction, he would be adequately compensated by an award of damages
for the loss he would have sustained as a result of the defendant's continuing to do
what was sought to be enjoined between the time of the application and the time of the
trial. If damages in the measure recoverable at common law would be adequate
remedy and the defendant would be in a financial position to pay them, no
interlocutory injunction should normally be granted , however strong the plaintiff's
claim appeared to be at that stage. If, on the other hand, damages would not provide
an adequate remedy for the plaintiff in the event of his succeeding at the trial, the
court should then consider whether, on the contrary hypothesis that the defendant
were to succeed at the trial in establishing his right to do that which was sought to be
enjoined, he would be adequately compensated under the plaintiff's undertaking as to
damages for the loss he would have sustained by being prevented from doing so
between the time of the application and the time of the trial. If damages in the
measure recoverable under such an undertaking would be an adequate remedy and
the plaintiff would be in a financial position to pay them, there would be no reason
upon this ground to refuse an interlocutory injunction . It is where there is doubt as
to the adequacy of the respective remedies in damages available to either party or to
both, that the question of balance of convenience arises. It would be unwise to attempt
even to list all the various matters which may need to be taken into consideration in
deciding where the balance lies, let alone to suggest the relative weight to be attached
to them. These will vary from case to case. Where other factors appear to be evenly
balanced it is a counsel of prudence to take such measures as are calculated to
preserve the status quo. If the defendant is enjoined temporarily from doing something
that he has not done before, the only effect of the interlocutory injunction in the event
of his succeeding at the trial is to postpone the date at which he is able to embark upon
a course of action which he has not previously found it necessary to undertake;

6
whereas to interrupt him in the conduct of an established enterprise would cause much
greater inconvenience to him since he would have to start again to establish it in the
event of his succeeding at the trial. Save in the simplest cases, the decision to grant or
to refuse an interlocutory injunction will cause to whichever party is unsuccessful on
the application some disadvantages which his ultimate success at the trial may show
he ought to have been spared and the disadvantages may be such that the recovery of
damages to which he would then be entitled either in the action or under the plaintiff's
undertaking would not be sufficient to compensate him fully for all of them. The
extent to which the disadvantages to each party would be incapable of being
compensated in damages in the event of his succeeding at the trial is always a
significant factor in assessing where the balance of convenience lies; and if the extent
of the uncompensatable disadvantage to each party would not differ widely, it may not
be improper to take into account in tipping the balance the relative strength of each
party's case as revealed by the affidavit evidence adduced on the hearing of the
application. This, however, should be done only where it is apparent upon the facts
disclosed by evidence as to which there is no credible dispute that the strength of one
party's case is disproportionate to that of the other party. The court is not justified in
embarking upon anything resembling a trial of the action upon conflicting affidavits in
order to evaluate the strength of either party's case.
 Martin: The new principles laid down by Lord Diplock briefly are as follows:
(i) the court must be satisfied that the plaintiff’s case is not frivolous or
vexatious and that there is a serious question to be tried; (ii) if so, the
governing consideration is the balance of convenience; (iii) a significant factor
in assessing the balance of convenience is the inadequacy of damages to each
party; (iv) if the balance of convenience does not clearly favour either party,
the preservation of the status quo will be decisive; (v) only as a last resort
should the relative strength of each party’s case be taken into account in
tipping the balance; (vii) finally, “other special factors” may have to be
considered in individual cases. The members of the House of Lords
unanimously agreed with Lord Diplock’s view that there was no rule requiring
the plaintiff to establish a prima facie case. The new formulation was
“designed to circumvent the necessity of deciding disputed facts or
determining points of law without hearing sufficient argument.

In Lord Denning’s judgment in Fellowes he expressed reservations about

American Cyanamid. He regarded it as inapplicable and based his refusal of
the injunction on the ground that there was no prima facie case. Lord Denning
made the comment that in “99 cases out of 100, the matter goes no further”.
This factor has been influential in subsequent cases which have accepted the
departure from the American Cyanamid principle is justified if it is unlikely
that the matter will ever come to trial. The following situations where ‘special
factors’ may arise, can be cited as examples where the application of
American Cyanamid may be contested but do not justify a departure from it;

Libel: As seen in Bonnard v. Perryman [1891] 2 Ch: Here it was stated that an
interlocutory injunction will not be granted in a defamation action where the

7
 defendant intends to plead justification of fair comment on a matter of public
interest. It has been held that this rule has been unaffected by American
Cyanamid because of the overriding public interest in protecting the right of
free speech. In order to rely on the rule the defendant must (1) state in his
affidavit an intention to plead justification or fair comment, and (2) the alleged
defamatory statement must not be clearly untruthful.

Hubbard v. Pitt [1976] Q.B.: The defendants were a group of persons who deprecated
changes in the character of the locality where they lived and worked which they
attributed in part to the assistance given by local estate agents to higher income house
buyers. Between March and June 1974 they organised a campaign to preserve the
social composition of the area and, inter alia, to require local estate agents to adopt a
particularised code of conduct in dealing with tenants and tenanted property. The
campaign included picketing of the premises of leading estate agents, in which the
plaintiffs were partners, for limited periods by small groups of people who displayed
placards with slogans derogatory of the plaintiffs' firm and distributed leaflets
explaining the reasons for the picket. In June the plaintiffs issued a writ claiming an
injunction to restrain the defendants from besetting their premises and interfering with
their business; damages for nuisance; damages for libel on the placards and in the
leaflets; and damages for conspiracy. The defendants claimed that their orderly
activities were in pursuance of their lawful right to express their opinions and call
attention to matters of public concern and indicated their intention to justify the words
complained of. On the plaintiffs' application for an interlocutory injunction in terms of
the writ Forbes J. granted it on the narrow ground that the use of the highway for
picketing which was not in contemplation or furtherance of a trade dispute was
unlawful. On an appeal by four of the defendants against that ruling, the plaintiffs
relied on the alternative ground in their pleadings that the defendants' activities
constituted the common law tort of private nuisance and submitted that on the
principles newly enunciated in American Cyanamid Co v Ethicon Ltd [1975] 2 WLR
316, H.L.(E.) the injunction should not be discharged before the trial of the action:
-Held, dismissing the appeal (Lord Denning M.R dissenting), (1) that the interlocutory
injunction was rightly granted and should continue, for, applying the principles lately
laid down by the House of Lords there was on the available material a serious issue to
be tried, namely, the pleaded issue whether the defendants by their activities outside
the plaintiffs' premises were committing the tort of private nuisance; and it could not
be said that the plaintiffs could not succeed at the trial on their claim for a permanent
injunction. (2) That for interlocutory purposes the balance of convenience was
overwhelmingly in favour of granting the interlocutory relief to maintain the status
quo before the campaign had begun. (3) That the terms of the injunction granted were
not too wide. Per Lord Denning M.R. The present case should be regarded as outside
the House of Lords ruling in the Cyanamid case having "special factors" which require
the court to assess the relative strength of each party's case. The plaintiffs have not
made out a prima facie case of private nuisance against the defendants; their real
grievance is that the words on the placards and in the leaflets are defamatory of them;
and it is well established that the court will not grant an injunction to restrain until trial
repetition of words complained of where the defence intends to justify them. Per

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Stamp L.J. There is no authority that the court is prevented from granting an
interlocutory injunction to restrain acts alleged to constitute a nuisance merely because
it may incidentally prevent publication of an alleged libel at a particular place (post, p.
220E). Lord Denning (dissenting): The plaintiffs placed much reliance on the recent
decision of the House of Lords in American Cyanamid Co v Ethicon Ltd [1975] 2
WLR 316. It was suggested that it had revolutionised our approach to interlocutory
injunctions: and that henceforward we were not to consider the strength of each party's
case, but only the balance of convenience. And that in general the balance of
convenience was to maintain the status quo. That would mean, in this case, and most
cases, granting an interlocutory injunction. There has since been another case in this
court differently constituted in which again the same point was made. It is Fellowes v
Fisher [1975] 3 WLR 225, about a covenant in restraint of trade. I have tried there to
reconcile the authorities. I will not repeat it here. All I would say is that I think this
case does not come within the ruling in the American Cyanamid case. In the first
place this is one of the "individual" cases in which there are special factors to be
taken into consideration. So much so that the court should assess the relative strength
of each party's case before deciding whether to grant an injunction. The plaintiffs
should not be granted an interlocutory injunction unless they can make out a prima
facie case. In the second place there are "uncompensatable disadvantages" which are
so evenly balanced that it is appropriate to have regard to the strength of each party's
case. My reasons are these: first, on the facts, so far as the picketing is concerned,
there is virtually no dispute. The only dispute on the facts is on the issue of libel, that
is, whether the words on the placards and leaflets can be justified, or not. Second: If
an interlocutory injunction is granted, it will virtually decide the whole action in
favour of the plaintiffs: because the defendants will be restrained until the trial (which
may mean two years, or more) from picketing the plaintiffs' premises, by which time
the campaign will be over. It is true that the plaintiffs will have to give an undertaking
in damages, but that will be of no use to the defendants, seeing that they will not suffer
any pecuniary damages, but only be prevented from continuing their campaign in this
way… It is time for the courts to recognise this too. They should not interfere by
interlocutory injunction with the right to demonstrate and to protest any more than
they interfere with the right of free speech; provided that everything is done peaceably
and in good order. That is the case here. The only thing of which complaint can
legitimately be made is the placards and leaflets. If it turned out at the trial that the
words on the placards and leaflets were untrue, then an injunction should be granted.
But not at present - when, for aught we know, the words may be true and justifiable.
And, if true, it may be very wholesome for the truth to be made known. The defendant
Pitt is ready to give an undertaking not to obstruct, molest or intimidate anyone: and
not to attend at or near the plaintiffs' premises save for the purposes of communicating
information. The other defendants, I presume, will give a like undertaking. On these
undertakings being given, I would allow the appeal and discharge the injunction.
 The main special factor in Hubbard was that the interlocutory injunction
would virtually decide the action because any trial would be at least two
years away, by which time the campaign which had given rise to the
picketing would be over. Also note that Lord Denning in following Bonnard

9
 did not think that cases of libel should follow the rule in American
Cyanamid.

Public Authority: In such a case the balance of convenience must

be looked at more widely and the interests of the public to whom the
duties were owed must be taken into account. In Smith the fact that
the defendant was a public body performing public duties was
considered a “special factor”.

Smith and others v. Inner London Education Authority [1978] 1 All ER: The policy of
the local education authority was to provide secondary education exclusively in
comprehensive schools and to eliminate schools to which entry was by selection
according to ability. Pursuant to their power under s 13(1) of the Education Act the
authority, in July 1976, submitted to the Secretary of State proposals to cease to
maintain an old-established boys’ grammar school. The school was a voluntary school
whose pupils, who numbered about 550, were selected according to ability. A quarter
of a mile from the grammar school there was a boys’ comprehensive school which had
about 800 pupils. Under the authority’s proposals the grammar school was gradually
to be phased out of existence and to be closed in 1981. Before submitting the
proposals the authority considered a report by their education officer which put
forward and analysed the alternatives open to the authority and concluded that the way
forward was to retain the comprehensive school at its current size and to cease to
maintain the grammar school and that entry should cease to be by selection, but they
wished to retain the identity and size of the grammar school. Their objections were
considered by the authority but did not prevail and in Jan 1997 the Secretary of State
approved the proposals. In May 1977 the parents association issued a writ against the
authority claiming a declaration that the proposals were unlawful under the 1944 Act
and an injunction to restrain the authority from implementing them. By motion the
parents applied for an interlocutory injunction pending the trial of the action. At the
hearing of the motion the parents contended that the authority’s proposals were
unlawful because the national policy for education laid down in s1 (1) of the 1944 Act,
as expanded in s 8 of the 1944 Act, required, by virtue of s 8 (1)(b); that the secondary
schools available for an area should be ‘sufficient…in character’ to afford pupils
education which offered variety of instruction and training, and accordingly the
authority were under a duty to ensure that in their area there were schools where pupils
were selected according to ability or schools which were smaller as regards the
number of pupils than comprehensive schools; and that in deciding to cease to
maintain the grammar school the authority had acted for the ulterior motive of closing
down all selective or smaller schools and replacing them by comprehensive schools.
On 27th June 1977 the judge granted interlocutory injunctions restraining the authority
from implementing of them already carried out. The grounds on which he granted the
injunctions were (i) that the parents had established that there was a serious issue to be
tried on whether the authority had misused their powers under the 1944 Act and (ii)
that the balance of convenience favoured the grant of the injunctions. The Authority
appealed. Held – The appeal could be allowed ad the injunction discharged for the
following reasons- (i) The courts were entitled to interfere with a decision of a local

10
education authority only where it had exceeded or misused its powers, had misdirected
itself in fact or in law or had exercised its discretion wrongly for no good reason. On
the true construction of ss 1(1) and 8(1) of the 1944 Act a local education authority
was entitled to implement the national policy by providing only comprehensive
secondary education, for the word ‘character’ in s 8 (1) did not refer to the method of
selection for, or the size of, schools but to what happened at, or the attributes of,
schools, eg the type of pupil at them, girls, boys or both sexes, or the type of
instruction available, academic, religious or practical. It followed that the authority
were entitled under the 1944 Act to have a policy of implementing the comprehensive
system of education and to apply that policy to any particular case whether the policy
should be applied. Since the authority had considered, before submitting their
proposals to the Secretary of State, the report of their education officer and
subsequently had listened to the parents’ objections to the proposals, they had not, in
deciding to cease to maintain the grammar school as part of their policy of
implementing comprehensive education, abused or misused their powers under the
1944 Act, or acted unreasonably. Accordingly the court was not entitled to interfere
with the implementation of the authority’s proposal. (ii) A local authority should not
be restrained by interlocutory injunction from exercising its statutory its statutory
powers unless the plaintiff had shown that there was a real prospect that he would
succeed in his claim for permanent injunction at the trial. In the circumstances, there
was no real prospect of the parents succeeding in their claims at the trial. Per Browne
LJ: (i) The test whether an interlocutory injunction should be granted is not different
when the defendant is a body a performing public duties and in such a case the
plaintiff is not required to establish a prima facie case, but need only establish that
there is a serious case to be tried. (ii) Where the defendant is a public in general to
whom the duties are owed. This is an example of the ‘special factors’ affecting the
balance of convenience which are referred to in American Cyanamid Co. v. Ethicon
Ltd.

Exceptions to American Cyanamid: In certain cases American Cyanamid may

be held to be inapplicable. These are as follows:

Where trial unlikely: It became apparent that justice would not be served by
applying American Cyanamid in a case where it was unlikely that the matter would
proceed beyond the interlocutory stage. If the balance of convenience favoured the
plaintiff, he could get an injunction without having to establish an arguable case.

For example in Covenants in Restraint of Trade:

Fellowes v. Fisher [1976] Q.B. 132: By a contract of employment made February

1972 and renewed in March 1973 between the P’s, a firm of solicitors, and the
defendant, a conveyancing and probate clerk employed by them, the defendant
undertook by clause 10 that if he left the firm’s employment he would not for five
years (a) be employed interested or concerned in the legal profession within the postal
districts of “Walthamstow and Chingford, an area of some 12 square miles of Greater
London with a population of 150,000, or (b) solicit any person corporation firm or

11
company who while the employee was employed by the firm was a client of the firm.”
The contract was for one year and thereafter from year to year, determinable by three
months notice on either side. In March 1974, the defendant after giving notice, went to
work for solicitors in the City of London: but six months later, wishing to work near
his home in Chingford, he applied for a clerkship in conveyancing with a firm of
solicitors who had three offices, one in Walthamstow very near the plaintiffs office.
He began work on October 28 after his new employers had been advised that clause 10
(1) was unenforceable. Within a week the P’s issued a writ claiming an injunction to
restrain the D from breach of the restrictive covenant and applied for an interlocutory
injunction in terms of the writ. Donaldson J on January 31, 1975, refused the
injunction without giving ant formal reasons. The P’s appealed, relying on the
principles stated in American Cyanamid CO. v. Ethicon Ltd. [1975] to support their
submission that the injunction should be granted to preserve the status quo until the
trial of the action:- Held, dismissing the appeal, that the injunction should be refused
for according to the rules laid down in the American Cyanamid decision there was a
serious issue to be tried but in absence of evidence on the adequacy of damages as a
remedy for the successful party on the trial of the action the balance of convenience
favoured letting the D continue in his present employment, and in so far as it was
permissible to form a provisional view on the validity of clause 10 (a) and of the
parties respective chances of success at the trial the clause was rather wide and the
defendant more likely to succeed: because there were “special factors”, within the
exception if American Cyanamid, to be taken into account, and it was appropriate to
follow the previous established approach of the House of Lords in J.T. Stratford &
Son Ltd. v. Lindley and to have the relative strength of each party’s case. Lord
Denning: “Nearly always, however, these cases do not go to trial. The parties accept
the prima facie view of the court or settle the case. At any rate, in 99 out of 100 it goes
no further. I should have thought that out practice in these cases was sensible and
convenient. It enables the parties to adjust their differences speedily and cheaply
instead of a trial which might be long and expensive. But Mr. Tunrer-Samuels has
submitted that we have to throw overboard all our accustomed practice. He draws out
attention to the recent decision of the House of Lords in American Cyanamid Co. v.
Ethicon Ltd. According to that case, he says that we are no longer to ask whether the P
has made a prima facie case. We have to only ask: is there a serious question to be
tried? If there is, then we should take serious measures to preserve the status quo. In
this case there is no doubt that a serious question is to be tried as the validity of the
clauses. The status quo was that Mr. Fisher was employed by solicitors in Fleet Street.
He only went Amhurst Brown on October 28, 1974: and the writ was issued on
November 6, 1974, together with the application for an injunction. So according to
Mr. Turner-Samuels, the status quo is to be preserved by preventing him working for
Amhurst Brown or for any other firm in these postal districts of Walthomstow and
Chingford and even though the clause is of doubtful validity. The American Cyanamid
case was only reported a little while ago, but we have already had two cases in which
its effect has been canvassed in this court. It has perplexed the profession. It has been
criticized in the legal journals. So much that counsel appealed to us for guidance…
Previously the understanding of the profession was that, in order to get an
interlocutory injunction, the plaintiff had to make out a prima facie case. This was

12
regarded as a simple matter of justice. After all the plaintiff was seeking to stop the
defendant doing something – and to stop him before the matter had ever been tried.
The plaintiff was asserting that the defendant was about to break a contract some other
wrong towards him. In order to invoke the aid of the court, it was thought that the
plaintiff ought at least to show a prima facie case, that is, a case which he had go on to
consider whether, on the balance of convenience, it was better to grant an injunction or
not. In support of this practice of the profession, I would refer to statements of
principle over the last hundred years both in this court and in the House of Lords. In
1884 Cotton L.J. treated it as a matter “of course” that the court should be satisified
that “there is a probability that the plaintiffs are entitled to relief”. In 1924 Atkin LJ
regarded it as axiomatic that a plaintiff “must establish to the satisfaction of the court a
strong prima facie case”: in the celebrated case of D.C. Thompson & Co. Ltd. v.
Deakin it was conceded at the Bar and accepted by this court as plain beyond question
that the plaintiff must show that “he has a prima facie case or, if you will, a strong
prima facie case”: and it was only because he failed to do so, after many days of
argument, that the court refused an interlocutory injunction. The clearest and fullest
statement of the principles was made in 1965 in the House of Lords itself in J.T
Stratford & Son Ltd. v. Lindley, when the House, after considering many conflicting
affidavits and hearing five days of argument, reversed this court on the very point that
a prima facie case had been established: and they granted an interlocutory injunction.
Lord Upjohn said, at “…the principles which ought to guide your Lordships seem to
me clear. An appellant seeking an interlocutory injunction must establish a prima facie
case of breach of duty by the respondent to him. He may even obtain a quia timet
injunction in case of a threatened injury, but I need not consider that further because a
prima facie case of an actual breach had been established. He must further establish
that the respondents are threatening and intending to repeat that breach of duty, but in
case such as this it may readily be inferred and I do so in this case. This being so, an
injunction may be granted if it is just and convenient so to do, the remedy being purely
discretionary. The balance of convenience in these cases is always of great
importance…”…Where then is the reconciliation to be found? Only in this: the House
did say, “there may be many other special factors to be taken into consideration in the
particular circumstances of individual cases.” The sentence points the way. These
individual cases are numerous and important. They are all cases where it is urgent and
imperative to come to a decision. The affidavits may be conflicting. The question of
law may be difficult and call for detailed consideration. Nevertheless, the need for
immediate decision is such that the court has to make an estimate of the relative
strength of each party’s case. If the plaintiff makes out a prima facie case, the court
may grant an injunction. If it is a weak case, or is met by a strong defence, the court
may refuse an injunction. Sometimes it means that the court virtually decides the case
at that stage. At other times it gives the parties such good guidance that the case is
settled. At any rate 99 out of 100, the matter goes not further. In support of what I
have said, I will give instances from many fields of law. Take industrial disputes,
where there is a strike, with picketing, blacking and the like. The plaintiff’s business is
being greatly injured. They seek and interlocutory injunction. The courts invariably
assess the relative strength of each party’s case and grant or refuse an injunction
accordingly. They give their reasons and that is the end of the matter. Look at (list of

13
cases) All ere decided on applications for interlocutory injunctions: and never went to
trial. Similarly with breaches of confidence. If the plaintiff has a strong case, an
injunction should be granted: for to postpone it would be equivalent to denying it
altogether. But, if the defendant has an available defence, it may be refused: Hubbard
v. Vosper very recently, were all decided on interlocutory applications and never came
for trial. Likewise with covenants in restraint of trade, and the like. Their validity is
frequently discussed on interlocutory applications. If the covenant is prima facie
invalid, an injunction will be granted; but, if not, it will be refused. Once decided,
these cases rarely come to trial. I would refer Home Countries Dairies Ltd. Skilton
etc.; So also with passing-off cases: It is said that “of the thousand or so passing off
cases there have been in the last decade, all (or virtually all) of them were ‘decided’ on
motion.”..To which I may add many commercial cases where the granting of an
interlocutory injunction virtually decides the action, as in Bailey. In my opinion this is
one of those “individual cases” in which the courts should go by the principles stated
by the House of Lords in J.T. Stratford & Son Ltd. v. Lindley rather than those stated
by them in American Cyanamid Co. v. Ethicon Ltd. Applying those principles, I am of
opinion that the plaintiffs have not made out sufficiently a prima facie case that clause
(a) is valid. On the contrary, the D has put forward some legitimate reasons for
thinking it may be invalid. For the reason alone an injunction should be refused.

Cayne and another v Global Natural Resources plc [1984] 1 All ER: For the purposes
of an application for an interlocutory injunction there is a triable issue between the
parties if there is a serious question to be tried (i.e. one for which there is some
supporting material) of which the outcome is uncertain. Accordingly, where the
plaintiff’s case relies solely on inference and the defendant has sworn a positive
affidavit which, if true and accepted, destroys that inference, the court should not
necessarily conclude that the plaintiff has failed to establish a triable issue, because on
such an application it is not necessary for the parties to establish firmly the outcome of
the case, and the mere fact that a party’s case is deposed to does not make it
incontrovertible. Where the grant or refusal of an interlocutory injunction will have the
practical 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 to
balance the risk of doing an injustice to either party. In such a case the court should
bear in mind that to grant the injunction sought by the plaintiff would mean giving him
judgment in the case against the defendant without permitting the defendant the right
of trial. Accordingly, the established guidelines requiring the court to look at the
balance of convenience when deciding whether to grant or refuse an interlocutory
injunction do not apply in such a case, since, whatever the strengths of either side, the
defendant should not be precluded by the grant of an interlocutory injunction fro,
disputing the plaintiff’s claim at a trial. Kerr LJ. I agree that this appeal must be
dismissed…I do not regard this case as one which falls within the mould of the
decision of the House of Lords in American Cyanamid Co. v Ethicon Ltd. Nor do I
regard that decision as going further than to lay down guidelines in situations where
two prerequisites are present. The first, as stated by Lord Diplock, is the question
whether to grant or refuse an interlocutory injunction has been placed into a state a
balance to the extent that the court can see that the plaintiffs’ case raises a serious

14
issue to be tried. If the plaintiffs fail at that point, then clearly there is no case for an
injunction, and obviously the Cyanamid guidelines cannot come into play. The second
prerequisite, as it seems to me, is that a trial is in fact likely to take place, in the sense
that the plaintiffs’ case shows that they are genuinely concerned to pursue their claim
to trial, and that they are seeking the injunction as a means of a holding operation
pending the trial. It is only in such cases, in my view, that the decision is any guide,
though undoubtedly a valuable one, to the problem whether or not the plaintiffs should
be protected in the Cyanamid case itself. It must also be remembered that the grant of
refusal of an injunction is ultimately a matter of statutory discretion, and that the
powers of the courts in this regard cannot be fettered by decisions in general terms,
when the facts of cases will vary infinitely. It may well be self-evident that the
decision in Cyanamid cannot be treated as laying down rules of law which are
applicable to all cases in which an interlocutory injunction is claimed, but it may be
helpful to mention two matters in this regard. First, a literal application of the well-
known passage in the speech of Lord Diplock would lead to the result that whenever a
plaintiff puts forward a serious issue to be tried, and whenever he is able to show that
any inconvenience, let alone injustice, to the defendant by the grant of an injunction is
capable of being compensated in damages against the P’s cross-undertaking, the court
would be bound to grant an injunction. This was virtually the P’s submission to this
court, but it cannot possibly have been Lord Diplock’s intention. The question whether
the D can be adequately compensated in damages normally only arises if the case in
fact taken to trial by the plaintiff. True, if the plaintiff does not do so, the D could still
claim damages against the P’s cross-undertaking on the ground that no injunction
should ever have been granted. But this is no answer, since it is for the P to make out a
case for the exercise of the court’s discretion in his favour, and in any event,
defendants rarely proceed to a trial of issues whose investigation they had sought, but
were concerned to resist. The test for the application of Cyanamid is therefore whether
the case is one where the court can see that it is likely to go to trial appropriate or not,
as a way of holding the situation in the interim….The practical realities in this regard
are that, if the p’s succeed in obtaining an injunction, they will never take this case to
trial. The reasons are easy to see…
 Martin: The Court of Appeal in Cayne v Global Natural Resources plc agreed
that American Cyanamid did not apply where an interlocutory injunction
would effectively end the action. In such a case the court should approach the
matter on a broad principle: what can the court do in its best endeavour to
avoid injustice.? Kerr LJ considered that American Cyanamid was confined to
cases where the plaintiff was concerned to pursue the claim to trial and sought
the injunction as a holding operation. The court did not, however adopt the
prima facie approach, but regarded the principle as being that it would be
unjust to grant the injunction if this would effectively preclude the defendant
from the opportunity of having his rights determined in a full trial.

Cambridge Nutrition Ltd. v. British Broadcasting Corp [1990] 3 All ER: The
Plaintiffs manufactured and marketed a very low calorie diet which was very widely
used. The BBC, in co-operation with the P, prepared a television programme about
very low calories diets with the P’s, diet because of its very high market share. In the

15
course of the making of the programme the P’s became concerned about the tone and
content of the programme and before it was broadcast the Ps applied for an injunction
to prevent it being broadcast until after publication of a report by a government
committee which was investigating the medical aspects of very low calories diets. The
P’s claimed that the BBC had agreed as a condition to the Ps co-operating in the
making of the programme that they would not transmit the programme until after
publication of the report. The BBC denied that they were contractually bound not to
transmit the programme until after publication of the report. The nature of the
programme was such that it was only appropriate for transmission in its existing form
being before publication of the report. The judge granted the injunction sough on the
grounds, inter alia, that the plaintiffs had established a plausible case that there was a
contract between the parties preventing transmission until after publication of the
committee’s report, that the balance of justice required an injunction to be granted and
that the BBC could be adequately compensated in damages if it turned out that the
injunction should not have been granted. The BBC appealed. Held – The appeal would
be allowed and the injunction discharged for the following reasons – (i) Where neither
side was interested in monetary compensation and the decision on an application for a
interlocutory injunction would be the equivalent of giving final judgment and, in
particular, where the subject matter of the application for an interlocutory injunction
was the transmission of a broadcast of the publication of an article the impact and
value of which depended on the timing of the transmission or publication merely
because the P was able to show a good arguable case and the balance of convenience
lay in granting an injunction. Instead, the court should assess the relative strength of
the parties’ case before deciding whether the injunction should be granted.
Furthermore, given that, all other things being equal, a doubtful contract should never
prevail over the right of free speech, it would be wrong to restrain publication on the
strength of nothing more than a plausible allegation of an agreement not to publish.
American Cyanamid distinguished. (2) In view of the judges misdirection the court
was entitled to exercise its own discretion, and having regard to the relative strength of
the parties cases and the importance of the BBC being allowed to broadcast
programmes on matters of public interest the court would refuse a injunction.
 Martin: Here the Court of Appeal expressly adopted the “relative strength”
approach in a case where the interlocutory stage would effectively end the
action (because, even though there might be a trial, the interlocutory order was
the real relief sought by the plaintiff). The case was regarded as exceptional in
that it involved freedom of speech, and was therefore analogous to the libel
cases. Eventhough Kerr LJ regard American Cyanamid as inappropriate, the
other members of the court did in fact apply it, using Lord Diplock’s principle
that relative strength could be decisive if the previous stages had not provided
the solution.

This factor also promoted the trade dispute legislation as exemplified in;

N.W.L. Ltd. v Woods [1979] 3 All ER: A Hong Kong company with a Swedish
controlling interest owned a vessel sailing under a flag of convenience. The vessel was

16
engaged by the plaintiffs on chartered voyages worldwide and was manned by Hong
Kong a crew who were paid relatively low wages by European standards. In June
1979, when the vessel arrived at Redcar to discharge its cargo, W, a representative of
the International Transport Federal (ITF), an international federation of trade unions
representing transport workers in 85 countries whose policy was to compel owners of
vessels sailing under flags of convenience to employ officers and seamen on standard
terms prepared by ITF and at ITF rates and wages, attempted to persuade the port
workers at Redcar to ‘black’ the vessel unless the shipowners signed an agreement
with ITF that they would enter into articles with the crew on the standard ITF terms.
The crew were content with their existing articles and were not in dispute with the
owners. The owners issued a writ (the first action) against W seeking an injunction to
restrain the blacking, and pending the trial of the action applied for an interlocutory
injunction in the terms of the writ. An interlocutory injunction was granted by the
judge but it was discharged by the Court of Appeal. The owners appealed to the House
of Lords. Meanwhile, although ITF’s further attempts to black elsewhere.
Accordingly, they brought an action (the second action) against N and L, two other
officials of ITF, seeking an injunction similar to that sought in the first action and also
an interlocutory injunction was upheld by the Court of Appeal. The owners appealed
to the House of Lords. The two appeals were consolidated. The questions for
consideration of the House were (i) whether the dispute between the shipowners and
the union officials was a trade dispute, within s 29(1) of the Trade Union and Labour
Relations Act 1974, (ii) if it was, whether the officials demands and actions were in
contemplation of furtherance of a trade dispute, within s 13(1) of that Act, and (iii)
what effect s17(2) of the Act had on applications for interlocutory injunctions in such
cases. HELD; (i) For the purposes of s 29 of the 1974 Act, ITF were, by virtue of s
29(4) ‘workers’ notwithstanding that they were in international federation of trade
unions, and since the dispute between ITF and the shipowners was therefore a dispute
between ‘employers and workers’ in connection with terms and conditions of
employment it followed that it was a trade dispute within s 29(1)(a). In so far as the
Hong Kong crew supported the shipowners in their resistance to ITF’s demands the
dispute might also have qualified as a dispute between ‘workers and workers’ within
within sub-s (1) (ii) For the purposes of s 13(1) of the 1974 Act, the making and
maintaining of threats course were acts done ‘in furtherance of a trade dispute’
between ITF and the shipowners connected with the terms and conditions of
employment of existing and future crews of the owners ship, and the fact that the
ultimate object of ITF’s campaign of blacking vessels sailing under flags of
convenience was to drive flags of convenience off the seas did not prevent the
immediate dispute between ITF and the shipowners from being a dispute connected
with the terms and conditions of employment of workers who were or might become
members of the ship’s crew, since the predominant subject-matter of the dispute
connected with the terms and conditions of employment of workers who were or
might become members of the ship’s crew, since the predominant subject-matter of
the dispute was irrelevant: all that was required was that there was a genuine
connection between the subject-matter of the dispute and the matters listed in s
29(1).However, since one of the main commercial attractions of registering vessels
under flags of convenience was to facilitate the use of cheap labour to crew them, the

17
ultimate object of ITF’s campaign was in fact connected with the terms and conditions
of employment merely because the demands made by the union on the employer
regarding terms and conditions of employment were unreasonable or commercial
impracticable. Nor did it matter that the demand was made and the dispute pursued
with more than one in mind, and that of those objects the predominant one was not the
improvement of the terms and conditions of employment of those workers to whom
the demand related. (iii) In exercising its discretion whether to grant an interlocutory
injunction pending the trial of an action, when the respondent claimed that he was
acting in contemplation or furtherance of trade dispute and accordingly was immune
from liability for tort by virtue of s 13 of the 1974 Act, the degree of likelihood of the
defendant’s succeeding in establishing that defence, to which the court was required to
have regard by s 17(2) of that Act, was only one of the factors to be taken into
consideration by the court, whether as one of the elements of the balance of
convenience or as a separate factor, the relative weight of which might vary with the
circumstances of the case. An injunction would ordinarly be refused in cases where
the defendant has shown that it was more likely than not that the plaintiff or others
might be disastrous if an injunction were not granted a high degree of probability that
the defence of statutory immunity would succeed would have to be established before
the injunction would be refused. Since W, N, and L had a virtual certainty of
establishing the defence of statutory immunity, the appeals would be dismissed.

Where trial likely to be delayed: Where because of congestion of the courts;

the time between action and trial may be considerable, the courts may not
apply the American Cyanamid principle.

(a) Where there is an restrictive covenant in on an employee to prevent him form

working in a particular way for a certain period after his employment ceased.

Lansing Linde Ltd. Kerr [1991] 1 A.C.: The defendant was employed by the plaintiff, the
English subsidiary of an international company which manufactured fork-lift trucks, as
the director of its northern division under a contract of employment which included a
term that for a period of 12 months after the termination of the contract the defendant
would not be engaged or concerned in any business which competed with the plaintiff or
its associated companies. The covenant was worldwide in scope except for those
geographical areas where the business did not compete with the plaintiff or its associated
companies. Other terms in the contract of employment required the defendant not to
divulge trade secrets or confidential information about the company nor to solicit
customers of the company. On 26 June 1990 the defendant resigned from the plaintiff and
by mutual agreement he left the company on 6 July. On 30 July he was appointed
managing director of another company which manufactured fork-lift trucks in
competition with the plaintiff. The plaintiff brought an action against the defendant
seeking, inter alia, an interim injunction restraining the defendant from working for the
other company or divulging trade secrets or confidential information about the company
or soliciting customers of the company. On 4 September the judge refused to grant the
injunction sought, on the grounds that, irrespective of whether there was a serious
question to be tried, trial of the action could not be arranged before March or April 1991,

18
by which time the 12–month period of restraint would have almost expired and since a
worldwide covenant against competition would probably not be upheld at the trial
because it was too wide the balance of convenience came down against the plaintiffs. The
plaintiffs appealed. Held – Where trial of an action to restrain a former employee from
working for a competitor in contravention of a restraint of trade clause would not take
place until the period of restraint would have expired or almost expired, the judge when
exercising his discretion to grant or refuse an interim injunction against the former
employee pending trial was entitled, on a wider view of the balance of convenience, to
take into account the likelihood of delay in obtaining a hearing date for the trial of the
action and to require the employer seeking the injunction to satisfy him not only that
there was a serious issue to be tried but also that it was more likely than not that the
employer would succeed at trial. Since the delay in obtaining a hearing date for the trial
of the action meant that the likely effect of the grant of an injunction would be finally to
decide the dispute against the defendant, some assessment of the merits more than merely
that there was a serious issue to be tried was required. The judge had therefore been right
to take into account the strength of the plaintiffs’ claim along with narrower aspects of
the balance of convenience, such as the difficulty that the plaintiffs would have in
proving damage, and the fact that a worldwide covenant against competition would
probably not be upheld at the trial, in deciding that on balance an injunction should not be
granted. The appeal would therefore be dismissed. Staughton LJ: “…If it will not be
possible to hold a trial before the period for which the plaintiff claims to be entitled
to an injunction has expired, or substantially expired, it seems to me that justice
requires some consideration whether the plaintiff would be likely to succeed at a
trial. In those circumstances it is not enough to decide merely that there is a serious
issue to be tried. The assertion of such an issue should not operate as a lettre de cachet,
by which the defendant is prevented from doing that which, as it later turns out, he has a
perfect right to do, for the whole or substantially the whole of the period in question. On
a wider view of the balance of convenience it may still be right to impose such a restraint,
but not unless there has been some assessment of the plaintiff’s prospects of success. I
would emphasise ‘some assessment’, because the courts constantly seek to discourage
prolonged interlocutory battles on affidavit evidence. I do not doubt that Lord Diplock, in
enunciating the American Cyanamid doctrine, had in mind what its effect would be in
that respect. Where an assessment of the prospects of success is required, it is for the
judge to control its extent.  I do not see that delay caused by congestion in the court’s list
should be left out of account. This is a practical reality as much as anything else. The
very reason for granting interlocutory relief is that a trial cannot take place immediately.
Delay for the parties’ preparations is necessary; but there is very often also delay before
the court can arrange a trial. It does not seem to me a matter for surprise or reproach that
in early September the Chancery Division could not arrange a trial lasting five days
before the following March or April.  Nor do I see why, as part of the practical realities,
the judge should not consider how likely it is that a trial will ever take place. On the
contrary, this seems to have been considered at least to some extent in the NWL Ltd case
and in Cayne’s case.

(b) In cases of allegedly confidential information, where there is doubt as to

its confidentiality or as to whether the public interest defence exists.

19
Attorney-General v. Times Newspaper Ltd. [1992] 1 A.C.: Lord Oliver commented that
if all that was required was an arguable case, a plaintiff claiming that information was
confidential could restrain its publication and, by invoking the law of contempt, would
“restrain its publication not only by the defendant but by anyone else within the
jurisdiction and this stifle what may, in the end, turn out to be perfectly legitimate
comment until it no longer has any importance or commands any public interest…I
cannot help feeling that in cases where it is clearly of importance that publication, if it
takes place at all, should take place expeditiously, it may be necessary for courts to
balance the rights of the parties and to decide the issue, as they sometimes did before the
Cyanamid case, at the interlocutory stage on the prima facie merits and on the evidence
then available.”

Mandatory interlocutory injunctions: American Cyanamid does not apply to

mandatory interlocutory injunctions. For such applications it does not
suffice for the plaintiff to have an arguable case or even a prima facie case.
The general test is that the court must feel a “high degree of assurance” that
the plaintiff will succeed at the trial, or, in other words, there must be a
strong prima facie case. If the defendant is made to do some positive act, it
may be difficult to restore the parties to their previous position if the
plaintiff turns out to be wrong at the trial. In Locobail International Finance
Ltd. v. Agroexport the Court of Appeal held that mandatory interlocutory
injunctions should only be granted in special circumstances; where the
matter ought to be decided at once; where the act to be ordered was a simple
one which could easily be remedied; or whether the defendant had
attempted to steal a march on the plaintiff. The “high degree of assurance”
test was approved and regarded as unaffected by American Cyanamid.
There maybe cases, however, where the injunction will be granted even
though the court does not feel a “high degree of assurance”, where there is a
greater risk of injustice to the plaintiff if the injunction is refused than to the
defendant if it is granted (see Films Rover Case).

Note dictum of Megarry J in Shephard Homes Ltd. v. Sandham: “It is plain that in
most circumstances a mandatory injunction is likely, other things being equal, to be
more drastic in its effect than a prohibitory injunction. At the trial of the action, the
court will, of course, grant such injunctions as the justice of the case requires; but at
the interlocutory stage, when the final result of the case cannot be known and the court
has to do the best it can, I think that the case has to be unusually strong and clear
before a mandatory injunction will be granted, even if it is sought in order to enforce a
contractual obligation…On motion, as contrasted with the trial, the court is far more
reluctant to grant a mandatory injunction that it would be to grant a comparable
prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of
assurance that at the trial it will appear that the injunction was rightly granted; and this
is a higher standard that is required for a prohibitory injunction.”

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Film Rover International Ltd. v. Cannon Film Sales Ltd. [1986] 3 ALL ER: The
defendant was an English company engaged in film distribution by means of financing
and acquiring rights in films which it then distributed worldwide through sub-distributors
in different countries. In order to effect distribution in Italy the defendant entered into a
contract with R, acting on behalf of the plaintiff, a company which R later incorporated in
Guernsey for the purpose of the contract. Some time later, following a change in the
defendant’s management, the defendant wished to renegotiate the contract with the
plaintiff with a view to splitting the distribution proceeds between the defendant and
plaintiff on terms much less favourable to the plaintiff than previously. The new terms
caused a dispute to arise between the parties, and the defendant, claiming that the plaintiff
was in breach of the contract, refused to send to the plaintiff dubbing material for certain
films with the result that the plaintiff was unable to distribute them for exhibiting in Italy.
The plaintiff accordingly issued a summons seeking, inter alia, an interlocutory
mandatory injunction requiring the films to be delivered to the plaintiff. At the hearing of
the application for the injunction the defendant contended that the court should not grant
the application because the plaintiff had not established a high probability that it would
succeed in establishing its legal right at trial. Held – In determining whether to grant an
interlocutory injunction the question for the court was not whether the injunction sought
was mandatory or prohibitory but whether the injustice that would be caused to the
defendant if the plaintiff was granted an injunction and later failed at trial outweighed the
injustice that would be caused to the plaintiff if an injunction was refused and he
succeeded at trial. Where the injunction was indisputably ‘mandatory’ that same test
applied to determine whether the case was normal (in which case the court was required
to feel a high degree of assurance that the plaintiff would succeed at trial before an
injunction would be granted) or exceptional in that because withholding an injunction
carried with it a greater risk of injustice than granting it the injunction should be granted
even though the court did not feel a high degree of assurance that the plaintiff would
succeed at trial. Since (a) there was no difficulty about the formulation of the order in an
enforceable form, (b) it was difficult to see how delivery of the films to the plaintiff
would cause uncompensatable loss to the defendant, (c) failure to deliver the films would
cause loss to the plaintiff which might be very difficult to quantify and might also force
the plaintiff to renegotiate the contract because of commercial pressure, and (d) in terms
of preserving the status quo the process of distribution which had been set in motion
ought not to be interrupted, there was in the circumstances a much greater risk of
injustice being caused if the injunction was withheld and the plaintiff was right than if the
injunction was granted and the plaintiff did not succeed at trial. Therefore it would be
right to grant the injunction. Hoffman J.: In the forefront of his argument counsel for
Thorn-EMI submitted that the court should not grant an interlocutory mandatory
injunction, amounting to specific performance of one of Thorn-EMI’s alleged contractual
obligations, unless there appeared a high probability that Films Rover would succeed in
establishing its legal right at the trial. In this case the Court of Appeal has gone no further
than to say that Films Rover has an arguable case and, as I have already said, I propose to
treat that as meaning that Films Rover is at least as likely to fail as to succeed. Counsel
said that fell well short of the standard of persuasion necessary for the grant of an
interlocutory mandatory injunction. In support of this proposition, counsel for Thorn-
EMI relied in particular on the recent decision of the Court of Appeal in Locabail

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International Finance Ltd v Agroexport, The Sea Hawk in which Mustill LJ (with whom
Balcombe LJ agreed) approved the following passage from the judgment of Megarry J in
Shepherd Homes Ltd v Sandham ‘Third, on motion, as contrasted with the trial, the court
is far more reluctant to grant a mandatory injunction than it would be to grant a
comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high
degree of assurance that at the trial it will appear that the injunction was rightly granted
and this is a higher standard than is required for a prohibitory injunction.’ Mustill LJ went
on to say that although this judgment pre-dated American Cyanamid Co v Ethicon Ltd,
the statement of principle ‘in relation to the very special case of the mandatory
injunction’ was not affected by what had been said in the House of Lords in that case. I
would respectfully agree that there is no inconsistency between the passage from
Megarry J and what was said in the Cyanamid case. But I think it is important in this area
to distinguish between fundamental principles and what are sometimes described as
‘guidelines’, i.e. useful generalisations about the way to deal with the normal run of cases
falling within a particular category. The principal dilemma about the grant of
interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition
a risk that the court may make the ‘wrong’ decision, in the sense of granting an injunction
to a party who fails to establish his right at the trial (or would fail if there was a trial) or
alternatively, in failing to grant an injunction to a party who succeeds (or would succeed)
at trial. A fundamental principle is therefore that the court should take whichever course
appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in
the sense I have described. The guidelines for the grant of both kinds of interlocutory
injunctions are derived from this principle.    The passage quoted from Megarry J in
Shepherd Homes Ltd v Sandham qualified as it was by the words ‘in a normal case’, was
plainly intended as a guideline rather than an independent principle. It is another way of
saying that the features which justify describing an injunction as ‘mandatory’ will usually
also have the consequence of creating a greater risk of injustice if it is granted rather than
withheld at the interlocutory stage unless the court feels a ‘high degree of assurance’ that
the plaintiff would be able to establish his right at a trial. I have taken the liberty of
reformulating the proposition in this way in order to bring out two points. The first is to
show that semantic arguments over whether the injunction as formulated can properly be
classified as mandatory or prohibitory are barren. The question of substance is whether
the granting of the injunction would carry that higher risk of injustice which is normally
associated with the grant of a mandatory injunction. The second point is that in cases in
which there can be no dispute about the use of the term ‘mandatory’ to describe the
injunction, the same question of substance will determine whether the case is ‘normal’
and therefore within the guideline or ‘exceptional’ and therefore requiring special
treatment. If it appears to the court that, exceptionally, the case is one in which
withholding a mandatory interlocutory injunction would in fact carry a greater risk of
injustice than granting it even though the court does not feel a ‘high degree of assurance’
about the plaintiff’s chances of establishing his right, there cannot be any rational basis
for withholding the injunction.

Anton Pillar and Mareva injunctions: The Anton Pillar injunction requires the
defendant to permit the plaintiff to enter and search his premises and to remove
evidence. They are designed to ensure that evidence is not disposed of or

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 destroyed pending trial. They are primarily mandatory, and to that extent fall
within the principles above. These injunctions evolved after American
Cyanamid and were never contemplated by the House of Lords, or governed
by that case. Thus Ormrod L.J. in Anton Pillar K.G. v. Manufacturing
Processes Ltd. regarded “an extremely strong prima facie case” as an essential
pre-condition. The “arguable case plus balance of convenience” test upheld by
American Cyanamid would never have been appropriate and never advocated
in this cases where this type of injunction is at issue.
Mareva injunctions are designed to prevent the defendant from dissipating or
removing his assets so as to be unable to satisfy the judgment should the
plaintiff be successful. It has long been established that they are governed by
the American Cyanamid principles, i.e. the plaintiff must have a good arguable
case and the balance of convenience must favour the grant. It has recently
become established that Mareva injunctions may be granted in respect of assets
abroad, even on a worldwide basis. A more stringent condition would therefore
have to be satisfied. Although no prima facie case was required, Parker LJ
considered that there was a difference between Mareva and other interlocutory
injunctions. For the latter, the requirement was “a serious issue to be tried”,
while Mareva injunction required “a good arguable case”. It is argued that
Mareva injunctions unlike Anton Pillar injunctions should not be regarded as
exceptions to American Cyanamid.
Life and death decisions: In Re J. (A Minor): Lord Donaldson stated that
American Cyanamid could not apply to a case and discharged an interlocutory
injunction, which was sought and granted at first instance by a local authority
who demanded that a health authority provide treatment where Doctors took
the view, that intensive treatment should not be given to a baby in the event of
a life-threatening illness. The court felt that there could be no question of
“balance of convenience”, and manifestly no question considering whether
damages would be an adequate remedy. It was doubted that there can be a
situation where the court should make an order positively requiring a doctor to
adopt a particular course of treatment. Normally the court is asked merely to
authorize it.

John Michael Design PLC v. Cooke [1987] 2 All ER: In late 1985 the defendants, an
associate director and a senior designer employed by the plaintiff 's, left to set up
business on their own.  Their contracts of employment with the plaintiffs contained a
covenant by the defendants not to canvass, solicit or accept from any client of the
plaintiffs any business in competition with or similar to that of the plaintiffs for a
period of two years from the termination of the contracts.  In December 1986 the
plaintiffs learnt that clients of theirs were proposing to place a contract with the
defendants' firm and were not, in any event, going to do further business with the
plaintiffs.  The plaintiffs sought an injunction to restrain the defendants from acting in
breach of their covenants.  The judge found that the covenants were prima facie

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enforceable and that the plaintiffs were entitled to an interlocutory injunction pending
trial in general form, but on the balance of convenience he excluded the particular
contract from the scope of the injunction.  The plaintiffs appealed. Held -- Although a
covenant restraining competition by an ex-employee would always be looked at
closely, if the court decided that it would be just to grant an interlocutory injunction
pending trial by way of enforcement of that obligation the plaintiff was prima facie
entitled to protection in respect of all his customers who fell within the ambit of the
covenant and in granting the injunction it was wrong in principle to try to exclude
some customers or some parties on whom it would otherwise bite.  The fact that a
particular customer would not do any further business with a plaintiff was not per se a
reason for excluding that customer from the scope of the injunction, since such an
eventuality was the very thing against which the covenant was designed to give
protection.  It followed that the appeal would be allowed. Per curiam.  In a case of a
covenant said to be in restraint of trade, the decision to grant or withhold an injunction
is for practical purposes usually decisive because of the short time limits
involved.  The court must accordingly decide if the covenant is prima facie good and,
if so, it should in the ordinary course of events restrain an offending defendant dictum
of Lord Denning MR in Office Overload Ltd v Gunn [1977] FSR at 43 applied.

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