Equitable Remedies

Worksheet 6 - Injunctions

Topic outline:
 jurisdiction with respect to injunctions
 types of injunctions by stage in the trial process
o perpetual and interlocutory (interim) injunctions

 types of injunction by their purpose

o prohibitory and mandatory injunctions
o injunctions without notice
o quia timet injunctions

 principles applicable to the issue of an injunction

 principles applicable to the different types of injunctions
 defences to perpetual and interlocutory injunctions
 the jurisdiction under Lord Cairns’
 injunctions in particular situations o to restrain a breach of contract
o to restrain a breach of trust
o to restrain the commission or continuance of a tort or the continuance
of a tort
o breach of confidence
o to prevent the removal or destruction of evidence – Anton Piller
(search) orders
o to prevent the removal of assets: Mareva (freezing) injunctions
 injunctions in particular situations
o public wrongs
o family matters
o trade unions, clubs and colleges
o judicial proceedings

Required readings:

 Glister & Lee. Hanbury and Martin on Modern Equity, 20th ed. (Sweet &
Maxwell, 2015), pp. 751 – 824

AND

 Ben McFarlane and Charles Mitchell, Hayton and Mitchell on the Law of
Trusts & Equitable Remedies: Text, Cases & Materials 14 ed. (Sweet &
Maxwell, 2015), pp. 766 – 785

Key cases:
 PJS v News Group Newspapers Ltd [2016] UKSC 26
 Wrothman Park Estate v Parkside Homes Ltd [1974] 1 WLR 798
 Miller v Jackson [1977] QB 966
 Kennaway v Thompson [1981] QB 88
 Parker v Camden LBC [1986] Ch 162

DRE pg. 1
  Redland Bricks Ltd v Morris [1970] AC 652
 Attorney General v Blake [2001]1 AC 268
 Leakey v National Trust for Places of Historic Interest or Natural Beauty
[1980] QB 485
 Sky Petroleum Ltd v VIP Petroleum [1974] 1 W.L.R. 576
 Penn v Lord Baltimore (1750) Ves. Sen 444
 Thorne v British Broadcasting Corporation [1967] 1 W.L.R. 1104
 Gouriet v Union of Post Office Workers [1978] AC 435
 Charrington v Simmons & Co Ltd [1971] 1 WLR 598
 Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334
 American Cynamid Co v Ethicon Ltd. [1975] AC 396
 Leeds Industrial Cooperative Society v Slack [1924] AC 851

Jurisdiction

 an injunction is an equitable remedy in the form of a court order which

prohibits or compels a party from continuing a particular activity

 it was originally within the purview of only the Chancery Court to grant an
injunction, but this inevitably led to much duplication of proceedings, as where
the claimant required an injunction as a remedy for a legal right

 the Common Law Procedure Act, 1854 gave common law courts a power to
grant injunctions in certain cases and the jurisdiction was to some extent
enlarged by the Judicature Acts 1873 – 5, which vested the jurisdiction of the
Court of Chancery and the common law courts in the High Court

o the restrictive approach – namely that the court’s jurisdiction has not
been extended, was affirmed by the House of Lords in Gouriet v Union of
Post Office Workers (1978), where Lord Edmund-Davies said that s. 25(8)
of the Act of 1873 “ ... dealt only with the procedure and had nothing to do
with jurisdiction ...”

 the party that fails to comply with the injunction faces civil or criminal contempt
of court for which he may be liable to pay damages or other sanctions

Types of injunction by the stage awarded in the trial process:

 injunctions may be awarded at two stages of the trial process

o perpetual injunctions: it is more common for injunctions to be granted at

the conclusion of a full trial hearing, and act as the final conclusion to the
dispute

o interlocutory (or interim) injunctions: in certain circumstances, the

urgency of the matter requires swifter action, as by the time the full trial
takes place, the damage may already have been done, and the claimant
will have been deprived of an effective remedy

DRE pg. 2
  this category of injunctions are temporary in nature, and will typically last until
the conclusion of the full hearing

 it is vital that such orders are temporary, as they are often granted before the
court has had the opportunity to hear all the arguments and evidence relating
to the claim

Type Stage
Perpetual injunction Prohibitory or mandatory order made at
the conclusion of the trials that
determines the rights of the parties
Interlocutory injunction Granted for a specific period of time
before or during the trial to protect
asserted rights until the merits can be
determined

Key point

 do not be confused if you come across references to ‘interlocutory’ injunctions

in some textbooks, while others use the term ‘interim’ injunction: until recently,
interim injunction were known as interlocutory injunctions.

1. Perpetual injunctions

 perpetual’ does not mean necessarily that the effect of the order must endure
forever – it means that the order will finally settle the present dispute between
the parties, being made as a result of an ordinary action the court having
heard in the ordinary way the arguments on both sides

 the injunction which is granted after the trial of an action in which the
injunction is sought

 such injunctions are permanent provided the conditions that produced them
remain permanent

see - London and Blackwall Railwall v Great Northern Railway (1883) 11 QBD
30

2. Interlocutory (interim) injunctions

 interlocutory injunctions are usually applicable in those cases where the

claimant may not always be able to wait for the action to come in the normal
course, since irreparable damage may be done if the defendant is not
immediately restrained

 it is granted to maintain the status quo between the parties and prevent
irreparable damage leading up to the final hearing of the dispute

DRE pg. 3
  interim injunctions may also be granted to assist in the enforcement of rights
such as Mareva (freezing) injunctions and Anton Piller (search) orders

 interlocutory injunctions are usually applicable in those cases where the

claimant may not always be able to wait for the action to come in the normal
course, since irreparable damage may be done if the defendant is not
immediately restrained

o if such is the case, the claimant will serve on the defendant a notice
that an application is being made to the court for an interlocutory
injunction

o the service of this notice will enable the defendant also to be heard, if
he wishes, but the hearing will not be the final decision on the merits of
the case

o if the claimant’s affidavit has made out a sufficient case, the judge will
grant an interlocutory injunction which is effective only until trial of the
action or some earlier specified date

Types of injunction by their purpose

 injunctions are a more flexible type of equitable remedy than specific

performance because they can perform different roles

 there are four broad types of injunctions:

1. prohibitive injunctions: these prevent a defendant from doing

something, and therefore stop a breach of obligation

2. mandatory injunctions: these compel a defendant to do something (and

therefore work in a similar way to specific performance)

for example: Lumley v Wagner [1852] EWHC (Ch) J96

Key case: Lumley v Wagner [1852] EWHC (Ch) J96

o hanna Wagner, a niece of the composer Richard Wagner, was a mezzo!soprano

singer, tragédienne in theatrical drama, and teacher of singing and theatrical
performance who won great distinction in Europe during the third quarter of the 19th
century.

o she was engaged by Benjamin Lumley to sing exclusively at Her Majesty’s Theatre
on Haymarket from 1 April 1852 for 3 months, two nights a week.

o Frederick Gye, who ran Covent Garden Theatre, offered her more money to break
her contract with Mr Lumley and sing for him
o Sir James Parker granted an injunction to restrain Mademoiselle Wagner
o she appealed.

DRE pg. 4
o the agreement to sing for the Plaintiff during three months at his theatre, and
during that time not to sing for anybody else, is not a correlative contract, it is. in
effect one contract! and though beyond all doubt this Court could not interfere. to
enforce the specific performance of the whole of this contract, yet in all sound.
construction, and according to the true spirit of the agreement, the engagement to
perform for three months at one theatre must necessarily exclude the right to
perform at the same time at another theatre

o Wherever this Court has not proper jurisdiction to enforce specific performance, it
operates to bind men's consciences, as far as they can be bound, to a true and literal
performance of their agreements ! and it will not suffer them to depart from their
contracts at their pleasure, leaving the party with whom they have contracted to the
mere chance of any damages which a jury may give

o It was objected that the operation of the injunction in the present case was
mischievous, excluding the Defendant J. Wagner from performing at any other
theatre while this Court had no power to compel her to perform at Her Majesty's
Theatre ... It is true that I have not the means of compelling her to sing, but she has
no cause of complaint if I compel her to abstain from the commission of an act which
she has, bound herself not to do, and thus possibly cause her to fulfill her
engagement. The jurisdiction which I now exercise is wholly within the power of the
Court and being of opinion that it is a proper case for interfering, I shall leave nothing
unsatisfied by the judgment I pronounce. The effect, too, of the injunction in
restraining J. Wagner from singing elsewhere may, in the event of an action being
brought against. her by the Plaintiff, prevent any such amount of vindictive damages
being given against her as a jury might probably be [620] inclined to give if she had
carried her talents and exercised them at the rival theatre: the injunction may also!
as I have. said, tend to the fulfillment of her engagement! though, in continuing the
injunction, I disclaim doing indirectly what I cannot do directly.

3. quia timet injunctions: these injunctions may be either prohibitory or mandatory,

and are made when the harm alleged has not yet happened, but is feared by the
claimant or threatened by the defendant

4. injunctions without notice: these occur in circumstances where the urgency of the
case is such that the claimant cannot even follow the procedure regarding the
interlocutory injunction

Types of injunctions by their purpose:

Type Purpose

Prohibitory injunction Restrains the defendant from doing something

Mandatory injunction Enjoins the defendant to take a positive action

Quia timet Prevents apprehended harm which has not yet

occurred
Injunction without notice An emergency application made in the absence of
the defendant

DRE pg. 5
A. Prohibitory injunctions
 this is the most common form of injunction – and as the name implies, is one
which is prohibitory or restrictive

 however, if the unlawful act has been committed and an order restraining its
commission is therefore meaningless, justice can sometimes be done by
issuing a mandatory injunction ordering the act to be undone

 at one time the negative nature of the injunction used to be insisted upon, but
a mandatory injunction is now couched in a positive form – and for this
reason, it may be harder to obtain

see - Sky Petroleum Ltd v VIP Petroleum [1974] 1 W.L.R. 576 o Jackson v
Nornamby Brick Co [1899] 1 Ch 438

B. Mandatory injunctions
 an injunction ordering the defendant to do something

 mandatory injunctions are granted sparingly

 it differs from the negative injunction, which is the more common type of
injunction, in that the question of the costs to the defendant to do the works
ordered so as to prevent or lessen the likelihood of a future apprehended
wrong is a specific factor which must be taken into account

see
o Redland Bricks v Morris [1969] 2 WLR 1437

o Ansah v Ansah [1977] 2 All E.R. 638 CA

o Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 2 Ch 200

C. Quia timet injunctions

 a quia timet injunction is issued to prevent an infringement of the claimant’s
rights where the infringement is threatened, but has not yet occurred

 it is in effect an action for an injunction to prevent an apprehended legal

wrong even though none has occurred at present

see- Kelsen v Imperial Tobacco Co. Ltd. [1957] 2 QB 479 o Redland Bricks
Ltd v Morris [1970] AC 652 at 664

 a mere vague apprehension is not sufficient to support an action for a quia

timet injunction – there must be an immediate threat to do something

DRE pg. 6
 see - Graigola Merthyr Co. Ltd. v Swnasea Corp. [1929] AC 344 at 353

 the jurisdiction is one of long standing and exists in relation to both perpetual
and interlocutory injunctions, and to both prohibitory and mandatory
injunctions

 the claimant must show a very strong possibility of a future infringement, and
that the ensuing damage will be of a most serious nature

see
o Fletcher v Bealey (1885) 2 Ch D 688

o Attorney General v Nottingham Corp [1904] 1 Ch D 673

o Redland Bricks Ltd v Morris [1970] AC 652

D. Injunctions without notice

 if the urgency of the case is such that the claimant cannot even follow the
procedure regarding the interlocutory injunction, (s)he is still not without a
remedy for (s)he can apply for an injunction without notice, which will take
effect immediately

 notice will then be served on the defendant who will then have the chance of
having the order set aside or varied

Other types of injunctions by their purpose:

 injunctions are a more flexible type of equitable remedy than specific
performance because they can perform different roles

 there are two other types of injunctions which have arisen in the equitable
jurisdiction

o Anton Piller (search) order: a mandatory quia timet interlocutory

injunction that allows the search of property to preserve evidence before
the trial

o Mareva (freezing) injunctions: a prohibitory quia timet interlocutory

injunction that restrains a party from removing assets from the jurisdiction
before the judgement

Type Purpose

Anton Piller (search) order A mandatory quia timet interlocutory injunction

Mareva (freezing) injunction
that allows the search of property to preserve
evidence before the trial
A prohibitory quia timet interlocutory injunction
that restrains a party from removing assets from the
jurisdiction before the judgement

DRE pg. 7
Principles applicable to the issue of injunctions

General principles
 while the injunction is a much wider remedy than specific performance, the
characteristics of the two remedies are similar

1. discretionary remedy

o the injunction is a discretionary remedy, based on the

inadequacy of common law remedies

o as is the case with specific performance, the court may award damages
under the Lord Cairns’ Act, either in lieu of, or in addition to an injunction

o in a rare case, the court will grant a declaration that a person who has yet to
seek an injunction, has no entitlement to it

 while the injunction is a much wider remedy than specific performance, the
characteristics of the two remedies are similar

2. remedy in personam

o like specific performance, the injunction is a remedy in personam – it is

possible to enjoin a defendant who is not personally within the jurisdiction,
provided that service out of the jurisdiction can properly be done under the
civil procedure rules

o but as a general rule, no injunction will be granted in connect with the title to
land outside the jurisdiction, even if the defendant is within the jurisdiction

o it is otherwise the case of chattels, and even in the case of

land, that the rule is subject to exceptions

o an injunction may be granted against an unnamed defendant, or against all

members of a class or organization to restrain the unlawful acts of unidentified
members

3. the public interest

o divergent views have been expressed in the Court of Appeal on the

questions as to whether the court, in considering the application for an
injunction to protect a private right, has a duty to take into account the
interests of the general public

compare
• Miller v Jackson [1977] QB 966

With

DRE pg. 8
 • Kennaway v Thompson [1981] QB 88
Key case: Miller v Jackson [1977] QB 966

 in Miller v Jackson (1977), the Court of Appeal was asked whether the
defendant – the chairman of a local cricket club, on behalf of its members –
was liable in nuisance or negligence when cricket balls were hit over the
boundary and onto the property of their neighbours, the Millers, the plaintiffs

 cricket had been played at a small cricket ground in Lintz, near Burnopfield,
County Durham, since 1905, on land leased to the club by the National Coal
Board

 the National Coal Board also owned a field adjacent to the ground, which it
sold to Stanley Urban District Council

 the Council sold the land to Wimpey for development, and a line of new semi-
detached houses were built next to the ground in 1972

 one of these, 20, Brackenridge, was bought by the Millers

 the Millers' garden boundary was only 100 feet (30 m) from the nearest
batting crease, and their house only 60 feet (18 m) further away

 several cricket balls were hit onto their property over the following years,
causing minor damage to their house (chipped paintwork, broken roof tiles)
and risking personal injury to the Millers

 despite measures taken by the club to minimise recurrences, including the

erection of a 8 feet 9 inches (2.67 m) high fence in March 1975 on top of a 6
feet (1.8 m) boundary wall and asking batsmen to try to hit fours rather than
sixes, a few balls continued to be hit out of the ground each season

 for example, in 1975, 36 matches were played over 20 weeks in the summer,
with 2,221 six-ball overs being bowled. – out of the 13,326 legitimate
deliveries (ignoring no-balls and wides) there were 120 sixes, of which six
crossed the fence and fell into the housing estate

 the club offered to meet the cost of any property damage (£400), and
suggested further countermeasures, such as louvred window shutters, and a
net over the Millers' garden

 the Millers were not content and sued for damages and an injunction to
prevent cricket being played on the ground

 the Court of Appeal delivered its judgment on 6 April 1977

 Geoffrey Lane and Cumming-Bruce LJJ held that there was a foreseeable risk
of injury to the plaintiffs and their property from the cricket balls and the club
could not prevent accidents from happening

DRE pg. 9
  the club was guilty of negligence "on each occasion when a ball comes over
the fence and causes damage to the plaintiffs".

 the repeated interference with their property was also held to be an actionable
nuisance

 following Sturges v. Bridgman, the fact that the Millers had “come to the
nuisance” was no defence

 on that basis, the Millers were awarded damages

 Lord Denning MR dissented from the finding of negligence and nuisance,

holding that “the public interest should prevail over the private interest”

o in summertime village cricket is the delight of everyone. Nearly every village

has its own cricket field where the young men play and the old men watch. In
the village of Lintz in County Durham they have their own ground, where they
have played these last 70 years. They tend it well. The wicket area is well
rolled and mown. The outfield is kept short. It has a good club house for the
players and seats for the onlookers. The village team play there on Saturdays
and Sundays. They belong to a league, competing with the neighbouring
villages. On other evenings after work they practise while the light lasts. Yet
now after these 70 years a judge of the High Court has ordered that they must
not play there anymore. He has issued an injunction to stop them. He has
done it at the instance of a newcomer who is no lover of cricket. This
newcomer has built, or has had built for him, a house on the edge of the
cricket ground which four years ago was a field where cattle grazed. The
animals did not mind the cricket. But now this adjoining field has been turned
into a housing estate. The newcomer bought one of the houses on the edge
of the cricket ground. No doubt the open space was a selling point. Now he
complains that when a batsman hits a six the ball has been known to land in
his garden or on or near his house. His wife has got so upset about it that they
always go out at week-ends. They do not go into the garden when cricket is
being played. They say that this is intolerable. So they asked the judge to stop
the cricket being played. And the judge, much against his will, has felt that he
must order the cricket to be stopped: with the consequence, I suppose, that
the Lintz Cricket Club will disappear. The cricket ground will be turned to
some other use. I expect for more houses or a factory. The young men will
turn to other things instead of cricket. The whole village will be much the
poorer. And all this because of a newcomer who has just bought a house
there next to the cricket ground

 however, on the basis that the club had agreed to pay for any damage, Lord
Denning was “content that there should be an award of £400 to cover any
past or future damage”

 Geoffrey Lane LJ would have upheld the injunction

DRE pg. 10
  however, Lord Denning MR and Cumming-Bruce LJ held that damages were
a sufficient remedy, holding that the discretionary equitable remedy of an
injunction was not necessary

 in the words of Cumming-Bruce LJ, the court had to “strike a fair balance
between the right of the plaintiffs to have quiet enjoyment of their house and
garden without exposure to cricket balls occasionally falling like thunderbolts
from the heavens, and the opportunity of the inhabitants of the village in which
they live to continue to enjoy the manly sport which constitutes a summer
recreation for adults and young persons”

 the Millers had bought a house with the benefit of an open space adjacent to
their land, and had to accept that the innocent and lawful use of the open land
could restrict the enjoyment of their garden

 it is notable that the court did not hold that holding cricket matches on the
ground was negligent, per se! rather, there were separate negligent acts each
time a ball left the ground.

 not long after the case, the Millers moved house

General principles

3. the public interest

o divergent views have been expressed in the Court of Appeal on the

questions as to whether the court, in considering the application for an
injunction to protect a private right, has a duty to take into account the
interests of the general public

see also
• Sevenoaks District Council v Pattullo and Vinson Ltd [1984] Ch 211

• Elliott v Islington London LBC [1991] I EGLR 167

• Dennis v Ministry of Defence [2003] 2 EGLR 121

o in considering whether to grant an injunction or damages in lieu under

Lord Cairns’ Act, the public interest does not prevail over private rights

o thus the views expressed in Miller v Jackson ran counter to the well-
established principles laid down in Shelfer v City of London Electric Lighting
Company

o however, Miller has been recently cited by the Court of Appeal as authority
for taking the public interest into account in limited circumstances

see - SmithKline Beecham plc v Apotex Europe Ltd [2007] Ch 71

DRE pg. 11
4. contempt

o non- compliance with an injunction (or an undertaking given in lieu) is a contempt

of court, punishable by imprisonment, sequestration of property (in the case of a
corporation), or a fine

o acts done in breach of an injunction may be void for illegality

o non-compliance with an injunction may be an element of a subsequent award of

exemplary damages

Protection of rights

1. locus standi

o “ .. it is a fundamental rule that a court will only grant an injunction at the suit
of a private individual to support a public right ...”

see
• Thorne v British Broadcasting Corporation [1957] 1 WLR 1104 at 1109 per
Lord Denning

compare with

• Chief Constable of Kent v V [1983] QB 34

o the general rule is that public rights are protected by the Attorney! General, acting
either on his own initiative or on the relation of a member of the public

see
• Martin. Hanbury and Martin on Modern Equity, 18 ed., pp. 800– 801: paras.25–013
and 25–014

• Gouriet v Union of Post Office Workers [1978] AC 43

• Attorney General v Blake [2001]1 AC 268

2. legal and equitable rights

o a right that is protected by an injunction must be one that is known to
law or equity

see
• Day v Brownrigg (1878) 10 Ch D 274
• Chief Constable of Kent v V [1983] QB 34
• P v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370
• Broadmoor Hospital Authority v Robinson [2000] 1 WLR 1590
• Paton v Trustees of British Pregnancy Advisory Service [1979] QB 276

DRE pg. 12
Principles applicable to specific types of injunctions

1. Perpetual injunctions

 it is axiomatic that the jurisdiction to grant injunctions is purely discretionary

 but as with specific performance, the court in exercising its discretion pays
attention to certain factors established by the precedents as being of
particular relevance

A) Prohibitory

 if a claimant has established the existence of a right, infringement of that

right should be restrained, but injunctions will not be granted where an
award of damages will be adequate

see
o Lord Cairns’ Act, 1858 see also
• Martin. Hanbury and Martin on Modern Equity, 18 ed., pp. 805– 807 : para.
25 – 017

B) Mandatory

 these are governed by the same general principles as prohibitory

injunctions, save that the problems of enforcement, supervision and
hardship are more acute

 mandatory injunctions are less frequently granted than prohibitory

injunctions, and as Lord Upjohn stated in Redland Bricks Ltd v Morris
(1970) are entirely discretionary, although it has been held that the court
has no real discretion in cases in trespass by total dispossession

see
o Leakey v National Trust for Places of Historic Interest or Natural Beauty
[1980] QB 485

o Harrow LBC v Donohue [1995] 1 EGLR 257

 there are two broad categories of mandatory injunctions

1. ‘restorative’ injunction – requiring the defendant to undo a wrongful act in

situations where a prohibitory injunction might have been obtained for the
commission of the act

see
o Charrington v Simmons & Co Ltd [1971] 1 WLR 598

o Pugh v Howells (1984) 48 P& CR 29

DRE pg. 13
 o Jones v Stones [1999] 1 WLR 1739

o Wrothman Park Estate v Parkside Homes Ltd [1974] 1 WLR 798

Key case: Wrothman Park Estate v Parkside Homes Ltd

 Parkside Homes bought land initially owned by Wrotham Park Estate, and
developed it in breach of a restrictive covenant attached to a previous phase
of construction in housing scheme

 the covenant stated inter alia that the scheme not be developed without
approval of the owner of the estate

 construction on 55 homes had begun, when Wrotham Park informed Parkside

of the covenant

 Parkside answered that it was aware of the covenant but had received advice
that it was not enforceable. Wrotham Park sought a prohibitory injunction and
sued for breach of the covenant

 by the time the matter was heard, the homes had occupied by purchasers, so
although Brightman J concluded that the covenant was enforceable to those
who owned houses built in 1935, he felt that a mandatory injunction to destroy
the houses would be “... unforgivably wasteful ...”

 accordingly, he examined the question of a monetary award of damages

under Lord Cairns' Act

 the damages were measured as the amount that might reasonably have been
demanded by the plaintiff as payment for relaxing the covenant, being 5% of
the developer’s anticipated profit.

2. a mandatory injunction to compel the defendant to carry out some positive

obligation

see - Evan v BBC and IBA The Times, February 26, 1974

 problems with supervision may arise with mandatory injunctions, as with

specific performance – which will not normally prevent the grant of a
‘restorative’ mandatory injunction

see - Gravesham Borough Council v British Railways Board [1978] Ch 379

 as in the case of prohibitory injunctions, it is not necessary for the claimant to

show grave danger or inconvenience

see
o Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334

DRE pg. 14
 o Charrington v Simmons & Co Ltd [1971] 1 WLR 598

o Wrothman Park Estate v Parkside Homes Ltd [1974] 1 WLR 798

 it has been held that the court should be reluctant to intervene in industrial
disputes by the grant of a mandatory injunction

see
o Harold Stephen and Co Ltd v Post Office [1977] 1 WLR 1172

o Parker v Camden LBC [1986] Ch 162 see also

o Martin. Hanbury and Martin on Modern Equity, 18 ed., pp.806–810:

paras.25–018 to 25–020

Suspension of perpetual injunctions

 if it would be very difficult for the defendant to comply immediately with the
injunction, he will not be made to do the impossible

 the injunction may be granted, but suspended for a reasonable period,

particularly if such a course will not result in financial damage to the claimant

 the defendant may be required to undertake to pay damages to the claimant

for any loss

see - Martin. Hanbury and Martin on Modern Equity, 18 ed., pp. 810 – 811:
para. 25 – 021

o Pride of Derby Angling Association v British Celanese and Others

[1953] Ch 149

o Halsey v Esso Petroleum Co Ltd [1961]1 WLR 683

o Miller v Jackson [1977] QB 966

o Waverly BC v Hilden [1988] 1 WLR 246

o Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411

o Charrington v Simmons & Co Ltd [1971] 1 WLR 598

2. Interlocutory (interim) injunctions

 interlocutory injunctions raise somewhat different considerations – the

jurisdiction is related not to the most just method of protecting established

DRE pg. 15
 rights, but to the most convenient method of preserving the status quo while
the rights are established

 the objective of an interlocutory injunction is “... to prevent the litigant, who

must necessarily suffer the law’s delay, from losing by that delay the fruit of
his litigation”

see – Hoffman-La Roche (F) & Co v Secretary of State for Trade and Industry [1975]
AC 295 at 355 per Lord Wilberforce

 interlocutory injunctions may be prohibitory, mandatory or quia timet

 failure to seek an interlocutory injunction to restrain the commission of a

wrongful act will not necessarily preclude the claimant from later obtaining a
final mandatory injunction to compel the defendant to undo the act

see
o Wrothman Park Estate v Parkside Homes Ltd [1974] 1 WLR 798

o Shaw v Appelgate [1977] 1 WLR 970

 considerations

o without notice procedure

o discharge of interlocutory injunctions o injunctions pending appeal

o complete relief

o injunction ineffective

see- Martin. Hanbury and Martin on Modern Equity, 18 ed., pp.811–813:

paras.25–022 to 25–027

 principles applicable to the issue of the interlocutory injunction

o the interlocutory injunction is discretionary and never granted as of course

o prior to the House of Lords decision in American Cynamid Co v Ethicon Ltd.

(1975), it was well established that the claimant had to show a strong prima
facie case that his rights had been infringed – requirements for which
essentially entailing that it was more likely than not (s)he would succeed in
obtaining a final injunction at the trial

Key case: American Cynamid Co v Ethicon Ltd

o the plaintiffs, an American company, owned a patent covering certain sterile

absorbable surgical sutures

DRE pg. 16
o 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

o the defendants contested its validity on diverse 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

o the Court of Appeal reversed his decision on the ground that no prima facie case of
infringement had been made out.

 principles applicable to the issue of the interlocutory injunction

o these principles were replaced by the rules laid down by Lord Diplock in
American Cyanamid which were mean to circumvent the necessity of deciding
disputed facts or determining points of law without hearing sufficient argument

1. the claimant’s case must be not frivolous or vexatious

2. there must be a balance of convenience

• considerations include:

o the court’s ability to quantify likely damages

o the sufficiency of the claimant’s cross-undertaking in damages

(if the defendant is successful at trial

o the sufficiency of the defendant’s financial resources to compensate the

claimant (if the claimant is successful at trial)

3. If there is no imbalance, then the status quo is preserved

Key Point: an applicant for an interim injunction no longer needs to

show that (s)he has a prima facie case before (s)he can
bring an application – what (s)he has to show now is that
his case against the defendant is neither frivolous nor
vexatious

 there are some instances where the American Cyanamid principles DO NOT
apply, or apply in modified form

o trade disputes

o where trial of the action is unlikely or delayed

DRE pg. 17
 o where there is no arguable defense

o libel cases

o injunctions to restrain the presentation of a winding-up petition

o mandatory interlocutory injunctions

read- Clements and Abass, Equity and Trusts: Text, Cases and
Materials, 3 ed. (2011), pp. 625 – 633

A. Mandatory interlocutory injunctions

 these are less readily granted than prohibitory interlocutory injunctions,

especially on the application without notice, because the mandatory order
may be more drastic in effect

see
o Parker v Camden LBC [1986] Ch 162

o Shepherd Homes Ltd v Sandham [1971] Ch 340

o Esso Petroleum v Kingswood Motors [1974] QB 142

o Sky Petroleum Ltd v VIP Petroleum [1974] 1 W.L.R. 576 o Evans v BBC
and IBA The Times February 26, 1974

 on the grant interlocutory injunction, the claimant is normally required to give

an undertaking in damages in the event that the injunction is discharged at the
trail as having been granted without good cause \

 the defendant may also be put on similar terms as a condition of an injunction

not being granted

see - Martin. Hanbury and Martin on Modern Equity, 18 ed., pp.811–830:

paras.25–022 to 25–041

4. Quia Timet injunctions

 a quia timet injunction may be available where the injury to the claimant’s
rights have not yet occurred but is feared or threatened

 the injunction may be perpetual or interlocutory, prohibitory or mandatory

 it may be further subdivided into 2 broad categories

DRE pg. 18
 1. where the defendant has not yet done any harm to the [claimant] but is
threatening, or intending (so the [claimant] alleges) to do works which will
render irreparable harm if carried to completion

 those cases are normally, though not exclusively concerned with negative
injunctions

2. the type of case where the [claimant] has been fully recompensed both at law
and at equity for the damage he has suffered but where he alleges that the
earlier actions of the defendant may lead to future causes of action ... it is in
this field that the undoubted jurisdiction of equity to grant a mandatory
injunction finds its main expression

see
o Redland Bricks Ltd v Morris [1970] AC 652 at 665 per Upjohn J

o Hooper v Rogers [1975] Ch 43

o Allen v Greenhi Builders Ltd [1979] 1 WLR 136

o Attorney General v Nottingham Corp [1904] 1 CH 673

o Martin. Hanbury and Martin on Modern Equity, 18 ed., para. 25 – 042

Defences to perpetual & interlocutory injunctions

1. delay

see
o Shepherd Homes Ltd v Sandham [1971] Ch 340

o Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334

o HP Bulmeer Ltd & Showeringa Ltd v Bollinger SA [1977] 2 CMLR 625

o Vine Products Ltd v McKenzie & Co Ltd (1969) RPC 1

o Erlanger v New Sombrero Phosphate Co (1873) 3 App. Cas 1218

2. acquiescence

see
o Richards v Revitt (1877) 7 CH D 224

o Shaw v Applegate [1977] 1 WLR 970

o Gafford v Graham (1999) 77 P&CR 73

DRE pg. 19
3. hardship

see
o Shell UK Ltd v Lostock Garages Ltd [1976] 1 WLR 1187

o Shepherd Homes Ltd v Sandham [1971] Ch 340

o Shaw v Applegate [1977] 1 WLR 970

4. conduct of the claimant

see

o Malone v Metropolitan Police Commissioner [1980] QB 49 at 71

o Shell UK Ltd v Lostock Garages Ltd [1976] 1 WLR 1187

o Argyll v Argyll [1967] Ch 302

o Hubbard v Vosper [1972] 2 QB 84

see also Martin. Hanbury and Martin on Modern Equity, 18 ed., pp. 832– 837 : paras.
25 – 043 to 25 – 047

The Jurisdiction Under the Lord Cairns’ Act

 the Chancery Amendment Act 1858 allowed damages to be awarded in lieu of

or in addition to an injunction or specific performance

 if the claimant can establish that his rights have been infringed, he is prima
facie entitled to an injunction

 damages will only be awarded in lieu in special circumstances, otherwise the

defendant would be allowed to “buy” the right to continue the wrongful act

see
o Shelfer v City of London Lighting Co [1895] Ch 287

o Redland Bricks Ltd v Morris [1970] AC 652

o Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334

o Jaggard v Sawyer [1995] 1 WLR 269

o Kennaway v Thompson [1981] QB 88

DRE pg. 20
  measure of damages
see
o Leeds Industrial Cooperative Society v Slack [1924] AC 851

o Wroth v Tyler [1974] Ch 30

o Johnson v Agnew [1980] AC 367

o Wrothman Park Estate v Parkside Homes Ltd [1974] 1 WLR 798

o Surrey CC v Bredero Home Ltd [1993] 1 WLR1361 see also

• Martin. Hanbury and Martin on Modern Equity, 18 ed., pp. 837– 845: paras.
25 – 048 to 25 – 052 -- Worksheet 4

Injunctions in particular situations

 injunctions may be granted in a variety of situations

1. to restrain a breach of contract

2. to restrain a breach of trust

3. to restrain the commission or continuance of a tort

4. breach of confidence

6. to prevent the removal or destruction of evidence – Anton Piller

(search) orders -- see Worksheet 8 below

7. to prevent the removal of assets – Mareva (freezing) injunctions o see

Worksheet 8 below

Read - Martin. Hanbury and Martin on Modern Equity, 18 ed., pp.845–881:

paras.25–053 to 25–086

A. to restrain a breach of contract

 an injunction is the appropriate remedy to restrain the breach of a negative

undertaking in a contract

 in some measure it corresponds to specific performance in the area of

positive undertakings

see- Martin. Hanbury and Martin on Modern Equity, 20 ed., p. 718:

para. 27 – 006

• mandatory injunctions may also be available

DRE pg. 21
  the jurisdiction to grant an injunction is however wider

see - Martin. Hanbury and Martin on Modern Equity, 20 ed., pp. 793 – 797 :
para. 28 – 054 – 28 – 060

B. Contracts for personal services

 it has been seen that contracts for personal services would not be enforced
either by specific performance, or by an injunction

see - Martin. Hanbury and Martin on Modern Equity, 20 ed., pp. 729 –
731: para. 27 – 024

 in this respect, it is necessary to distinguish contracts of employment, from

other contracts for personal services

 the principle in Lumley v Wagner (1852) has been much criticized

see - Martin. Hanbury and Martin on Modern Equity, 20 ed., pp. 797 – 800:
para.28–061–28–063

C. To restrain breach of trust

 there are many examples of the issue of an injunction to restrain a breach of

an equitable obligation

see - Martin. Hanbury and Martin on Modern Equity, 20 ed., p. 800: para. 28 –
064

D. To restrain the continuance of a tort

 in each of the cases in which an injunction issues to restrain the commission

of a tort, equity is exercising its “concurrent” jurisdiction

 equity plays no part in determining whether a wrong has been committed! that
is a matter solely for law

 it is the remedy alone which is equitable

 thus, the claimant must first establish the commission or threat of something
which constitutes a tort at law

 if it is, the court may, in its discretion grant an injunction

 the rules and practice vary with the tort in question

DRE pg. 22
 see - Martin. Hanbury and Martin on Modern Equity, 20 ed., pp. 800 ! 803 :
paras. 28 – 065 – 28 – 068

E. A breach of confidence

 an injunction will be available to restrain a breach of confidence, whether

arising out of personal, commercial or other relationship

 many of the questions which arise are similar to those concerning the restrain
of the tort of libel (see para 28 – 068 above), but the principle of freedom of
speech plays a less dominant part here

 unlike libel, the truth of the statement is not a defence to a breach of

confidence

 as will be discussed (see para 28 – 078 below), the Anton Piller (search)
order has evolved to protect the victims of commercial malpractice and
espionage

 also in the commercial context, an injunction may be granted to restrain a firm

of solicitors or accountants from acting for one client against another client in
respect of whom confidential information is retained, unless a clearly effective
“Chinese wall” information barrier is in place (see Hanbury and Martin on
Modern Equity, 20 ed, p. 803, footnote 445)

 there are also other relationships where an obligation of confidence exists

see - Martin. Hanbury and Martin on Modern Equity, 20 ed., pp. 803 - 807:
paras.28–069–28–071

injunctions may be granted in a variety of situations:

8. public wrongs

9. family matters

10. trade unions, clubs and colleges

11. judicial proceedings

12. legislative proceedings

DRE pg. 23
DRE pg. 24