The injunction is one of the most important remedies in civil litigation.

Indeed, the freezing injunction was

described by Lord Donaldson M.R. as ‘one of the law’s two nuclear weapons’, the other being the search
order.

Consider the various types of injunction that the civil courts are empowered to grant, giving illustrations as
to the exercise of judicial discretion to ensure that any such orders are made only when ‘just and conveni
ent’ to do so.

Introduction
An injunction is an order by the court to a party to do or refrain from doing a particular act to ensure that ju
stice is done. Court may order to the property owner to stop development work to his/ her own property d
ue to stability or threating to the neighbouring land. Sometimes it could be used for the illegal construction
work, which is harm for other or developer start work in another person’s land. It could be intellectual pro
perty rather than land i.e. confidential client’s database, which is used for previous employer.1 Greek phil
osopher Aristotle once said that a judge might ignore a legal rule if its literal application would cause an inj
ustice, which the legislator could not have intended. The purpose of equity in this sense is to prevent injus
tice being caused by the automatic application of legal rules. 2 The equitable remedies considered, are inj
unctions, like specific performance.

The Common Law Procedure Act 1854 gave to common law courts a power to grant injunctions in certain
cases. The present jurisdiction is governed by the Senior Court Act 1981, replacing the Judicature Acts,
which vested the jurisdiction of the Court of Chancery and of the common law courts in the High Court. Th
e Senior Courts Acts 1981 provides in s.37 (1)

The Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appea
rs to the court to be just and convenient to do so (Beddow v Beddow 1878)

Historical background of Injunctions

English law comprises two systems of case law: common law and equity. An understanding of this divisio
n is essential to an understanding of trusts, for the trust device is only recognized by equity, not the comm
on law. The rules of equity are those rules, which, prior to the passing of the Judicature Acts 1873–75, we
re administered by the Court of Chancery. Until that time, there were physically separate courts of commo
n law and equity, each applying their own rules. Sometimes those rules were the same, but often they wer
e different. Today there are no separate courts of law and equity and every High Court judge is empowere
d to administer the law of both jurisdictions. For the sake of convenience, however, many actions which w
ould have formerly been heard in a Court of equity is now assigned to the Chancery Division of the High
Court of Justice.3

The Importance of an Injunction

Due cares and precautions are necessary to award injunctions. In a strict sense, the court has jurisdiction
to grant an injunction against a person simply by virtue of that person being subject to the in personam jur
isdiction of the court. However, that jurisdiction is exercised, not on the individual preference of the court,
but according to sufficient legal reasons or on settled legal principal. 4 Sweet & Maxwell

Different remedies were available from the common law courts and the courts of equity. A common law co
urt could order a losing defendant to pay damages, a money sum, to the claimant and in cases concernin
g land could order defendant to get off the land so that the claimant could take possession. If the defenda
nt refused to pay damages, the court would authorise to law enforcement authority to confiscate his/her p
ossessions either hold it until he paid or sell it to raise the claimant’s damages. Similarly, if a defendant ref
used to get off the land, the authority would come around and clear to him/her out.

Injunctions have their origin in Equity. Equity can also rescind contracts or tell people to carry on as the d
ocument had different terms. As a result, in many cases litigants whose substantive rights lay at common
law would seek remedial assistance of chancery. For example, one suffering the smoke/bad smells of a n
eighbour’s factory and is unsatisfied with money damages. He/she would apply to chancery for an injuncti
on to shut the factory down; or would seek an order from chancery for the specific performance of the con
tract in such case where money damages for breach would not be enough to compensate to affecting part
y. 4

Applicable principles for issuing the injunction

It can be discretionary remedy based on the inadequacy of common law remedies where specific perform
ance and the characteristics fulfil. Injunction can be remedy in personam like fulfilling specific performanc
e requirement. It can be considering taking into account based on interest of the general public according
to Miller v Jackson.

A person seeking an injunction must be able to show interference with his rights. The injunction was conc
eived in response to the inappropriateness or inadequacy of damages as a remedy. This principle has be
en modified in recent times and is now whether it would be just in all the circumstances to confine the clai
mant to an award of damages. 5

There has been considerable discretion of the impact of statutory development as s.25(8) Judicature Act
1873. Here the court jurisdiction in cases where no injunction granted previously, (Cummins v Perkins 18
99). On the other hand, the Act 1981 enlarges the pre-existing jurisdiction. (Chief Constable of Kent v V, 1
983). House of Lords approved the restrictive approach in Gouriet v Union of Post Office Workers that it is
matter of procedure and it has nothing to do with jurisdiction therefore it is common understanding that w
orld changed so the approach. Modern courts are flexible and responsive to changing world. (Mercedes B
enz A G v Leiduck). The exercise of jurisdiction must be principled, but the standard is injustice. It should
be viewed and decided according to current conditions and standards, not of the history.

A FREEZING ORDER
The term freezing injunction, use to freeze defendant’s assets to give the legal remedy to the claimant mo
netary claim prior to trail. Typically, the injunction is granted at interlocutory stage. It may also issue after t
rail. Freezing injunction is awarded at an ex parte basis. The plaintiff must make full discloser of all releva
nt factors of the case. Removing assets from jurisdiction where there is risk that any judgment can go uns
atisfied due to deposal or removal such injunction is issued. Such order is issued on interim based pendin
g trail. Or it can be issued post trail where the claimant can show the risk that the defendant can remove h
is or her assets to avoid the accomplice of the judgment. The target of the order is the value of the claim,
not to the assets. It can be all of the defendant’s assets or part of assets up to specified limit. The freezing
injunction is as known as Mareva injunction according to the case Mareva Compania Naveira SA V Intern
ational Bulkcarriers SA 1975. 6

Mareva injunctions have been described being draconian in nature. It can have severe effect on defendan
t on his or her business. This injunction exposes to this substantive claim that claimant have right to mone
y from the dependent. The first case of freezing injunction was granted 1975 in Nippon Yusen Kaisha v K
arageorgis case.

Freezing Injunction requirement.

A freezing injunction is as interim injunction so the usual requirement are recognised in American Cyana
mid Co v Ethicon ltd.

The plaintiff should make full and frank discloser of all matter in his best knowledge which the judge to kn
ow.
The claimant should give particular of his or her claim against the defendant describing the ground of his
or claim and the amount.
The claimant should give some ground for believing that the defendant has assets within the jurisdiction-
usually the existence of bank account is enough for such requirement.
The claimant should provide some ground for believing that there is risk of the assets being removed.
The claimant should give an affidavit that he/she will compensate the defendant for the damage in case h
e or she fails. 7
A NUCLEAR WEAPON
Due to such importance in commercial litigation, if successful, freezing injunction can often result in an ea
rly “knock out blow” against a party who would otherwise seek to evade the enforcement of a judgment ob
tained against them. The drastic nature of the it led to it being described by Lord Donaldson, in the mid 1
980’s, as “one of the law’s two “nuclear” weapons”; the other being the Anton Pillar Order, or search order
. For this reason, this has led the courts to put in place a number of procedural safeguards for defendant
s in relation to these orders.

THE PURPOSE OF FREEZING ORDER

Invention of injunction is a creation of judicial innovation. Freezing injunction significantly refined and expa
nded by case law since 1970s. The freezing order is granted for an important but limited purpose: to prev
ent a defendant dissipating his assets with the intention or effect of frustrating enforcement of a prospectiv
e judgment. They are not a proprietary remedy. They are not granted to give a claimant advance securit
y for his claim if he/she succeeds. But in practice they may have such effect. They are a supplementary, n
ot an end in themselves, granted to protect the efficacy of court proceedings, domestic or foreign. 8

Search Order
Search order is also an application of equitable jurisdiction. It is known as Anton Pillar Order after one of t
he first case to recognise the legitimacy of the order of Anton Pillar KG v Manufacturing Process Ltd 1976
case. It is something of hybrid between discloser and injunction. It is considered to an interim mandatory i
njunction. It allows the claimant accompanying by his or her lawyer to enter the dependents premises and
forces the defendant to permit the claimant to inspect document and or remove certain document specifie
d in order. It was derived from common law from in the beginning but now it is under statutory provisions.
CPA 1997 s.7

The procedure for granting search order is governed by the Civil Procedure Rule r.25.1. Search orders ar
e highly critical if the case is involved for intellectual disputes according to Rank Film Distribution Ltd v Vid
eo Information Centre case.

There are three conditions for making search order 1. There must be strongly prima facie case, 2. The da
mage, potential or actual must be very serious for the claimant. 3. There must be clear evidence that defe
ndant has in his possession valuable document or things that there is a real possibility that they made des
troy such material before any application inter parties can be made. (Lock Plc v Beswick) 9

Classification of an Injunction:
There are many types of injunctions, it can be the prohibitory or restrictive injunction, however, it could be
mandatory, if the unlawful act has been committed, justice can issue mandatory injunction. It is also classi
fied in terms of the duration. It could be perpetual, interlocutory and interim. Prohibitory or mandatory inju
nction may be perpetual or interlocutory. Perpetual does not mean that the effect order must be forever. T
he claimant has to established sufficient damages of his/her right, infringement of that right and it must be
quantifiable to seek prohibitory injunction.

An injunction can be categorised as various ways. It can impose the obligation in positive or negative way
. The Senior Court Act 1981 s.37 confirms that the courts are able to grant injunctions with the discretiona
ry power wherever it needed.

The perpetual injunction

This is an injunction, which has an indefinite duration or will last at least as long as is necessary to settle t
he dispute between the parties. It is exercising as discretion to pays attention and established particular r
elevance factor. Such injection can only be granted at the trial of an action.

The interlocutory/ interim injunction:

The interim injunction is also granted pre-trial and ex-parte basis. For this reason, the interim injunction is
rarely granted. It is granted without notice, requires the claimant to act with utmost good faith. This means
disclosing to the court all relevant facts, not just those that support the applicant’s case.
Interim injection is called also interlocutory injunction. It is to prevent a litigant who necessarily suffers the
law’s delay. This injunction is granted prior to the full hearing of the dispute between the parties. The prim
ary function of an interlocutory injunction is to preserve the status quo existing between the parties to an a
ction until the outcome of the main hearing. A claimant must give an undertaking to pay damages to the d
efendant so that the latter is compensated in the event that an interlocutory injunction is awarded restraini
ng the defendant from an act, which later at trial it is found he was entitled to perform. The old approach w
as to ask whether the claim would be likely to succeed at trial and, if so, the court would grant an injunctio
n. This was tantamount to making a pre-judgment of the issue without hearing the evidence.

The current English position established by the House of Lords in American Cyanamid v. Ethicon Ltd. [19
75]. In this case, the claimant obtained an interlocutory injunction to restrain the defendants from marketin
g surgical products in alleged infringement,

Lord Diplock rejected the prima facie case test. His concern was to prevent the court from dealing with co
mplicated questions of law and fact at the interlocutory stage. He stated that the test for the grant of an int
erlocutory injunction was as follows:

The claimant had to establish that his/her claim was not frivolous or vexatious, in other words that there w
as ‘a serious question to be tried’. It was established, the court must go on to consider the balance of con
venience, which involved assessing the probable implications for both parties, should relief be granted or
refused. In particular, the court must consider the adequacy of damages: an injunction should not be gra
nted if damages would be an adequate remedy. The court may also consider whether damages would ad
equately compensate the defendant if an injunction is granted and the defendant succeeds at trial. Anothe
r related issue is whether the plaintiff would be able to pay any damages, which may be awarded at the tri
al of the action.

Mandatory Injunctions
A mandatory injunction is a court order compelling a person to perform a certain act. Mandatory injunctio
ns are two types- ‘restorative’ mandatory injunction is one restoring the status quo by requiring the defend
ant to do an act and ‘enforcing’ mandatory injunction requires the performance of some positive act, often
on at continuous basis. This second type is less often granted than the first. The courts have been more r
eluctant to issue mandatory than prohibitory injunctions, especially at the interlocutory stage. This is beca
use it may involve a more obligation for the person on whom the order is made than where such a person
is merely required to stop what he has been doing. It is also more difficult to frame the terms of a mandato
ry injunction with the requirements to enable the person to know what exactly, has to be done. Some time
terms of a mandatory injunction can lead the court back into reviewing and monitoring the situation, whic
h usually court avoid to do.

In case of Redland Bricks v Morris(1970), Lord Upjohn said:

A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the fa
cts that grave damage will accrue to him in the future… It is a jurisdiction to be exercised sparingly and wi
th caution but in the proper case unhesitatingly

Courts are even more reluctant to grant mandatory injunctions at an interlocutory stage. The question ari
ses, however, as to what is the appropriate test to be applied. Some cases simply adopt the Cyanamid pr
inciples, others set the bar higher: In

Shepherd Homes v Sandham (1970),Megarry J. held that at the interlocutory stage it is far less likely the
court will award a mandatory injunction. The case has to be ‘unusually strong’ and there must be a ‘high
degree of assurance’ that the trial will conclude that it was appropriate to grant the injunction.

Quia Timet Injunction

A Quia Timet Injunction is available where the injury to claimant right has not occurred but is feared or thr
eatened. This injunction may be perpetual or interlocutory, prohibitory or mandatory. A Quia Timet injuncti
on is granted to restrain a threatened or apprehended breach of the plaintiff’s rights. Such injunctions are
relatively difficult to obtain because of the fact that the courts require from plaintiff to establish that the thr
eatened injury is either certain or very imminent to occur. It is not sufficient to simply establish a mere fear
of threatened injury or damage. It must be shown that the injury or damage is certain or imminent to occu
r. The level of probability of the threatened action occurring that is required before such injunction will be
granted is something that has been considered at length by the courts – there must be substantial and co
nvincing evidence of real danger of actual violation (Angela Drury v Secretary of State for the Environmen
t Food and Rural Affairs [2004] Redland Bricks v Morris [1970]

Lord Upjohn summarises two types of Quia Timet – the defendant has not yet done harm but is threatenin
g and intending to act in a manner which will cause irreparable harm to the plaintiff or his property; and th
e type of case where the plaintiff has been recompensed for the damage that he has suffered but alleges
that the earlier actions may lead to future cases of action. 10

Mareva Injunctions
The function of Mareva or freezing order is to prevent the dissipation or removal of a defendant’s assets p
rior to trial. The injunction is granted where it can be established that the defendant intends to remove the
assets for the purposes of avoiding his obligation to the plaintiff and frustrating the judgement of the court.
This ensures that there will be asserts available to the plaintiff should he succeed at trial. The order is gra
nted on an ex parte basis. Consequently the plaintiff must make full disclosure of all relevant factors.

Bayer Injunctions
The Bayer injunction forbids a defendant from leaving the jurisdiction and is often granted in such case w
here an existing Mareva injunction or Anton Piller order has not been complied with: Bayer AG v. Winter [
1986]

B v B [1998] clarifies that the power to grant a ‘Bayer injunction’ is an ancillary jurisdiction. The court may
grant an order to restrain a debtor from leaving the jurisdiction as an aid to its established procedures for t
he enforcement of a judgment. The Court cannot simply detain a person in the country until he pays the d
ebt. These injunctions were considered in the European Court of Human Rights in Reiner v Bulgaria (200
7) The Court held that there was a violation of Art 13, in conjunction with Art 8 and Art 2 of Protocol 4 in re
spect of the prohibition. The reason for this was that there was no time limit set on how long the injunction
would last for thus not striking a fair balance between competing rights. Essentially the European Court c
onfirmed that the restriction on the right to travel must be for the shortest time as possible.

In the case of JSC Mazhdunarodny Promyshellniy Bank v Pugashev (2015) a French national was subjec
t to discovery and freezing orders in the UK, an order preventing him from leaving the UK to attend a cour
t appointment in France was upheld on the ground that he would make use of the opportunity to flee if he
were granted temporary use of his passport. Since his attendance at the court appointment was not mand
atory, the restriction was not disproportionate.

Specific Performance
Specific performance is an order of the court to one party of the contract that the party must fulfil the term
s of the contract. It is rarely granted at common law and will be advocate remedy in the event that the con
tract is breached. In such case the claimant must show that the damage are not enough remedy in order t
o invoke equity jurisdiction to grant and order for specific performance. To ask such order from court the c
laimant have to show that the contract concern specific property. Where the payment of damages cannot
compensate him or her for the defendant breached of the contract. Such order are difficult to get from cou
rt if there is need for court to supervise and monitor constantly for the implementation of its order as it is m
ention in the case of Co-Operative Insurance Limited v Argyll Stores Ltd. 11

Third parties and Injection

In Miller v. Jackson [1977] Lord Denning refused to grant an injunction to prevent cricket balls from the lo
cal club flying into the claimant’s back garden. The court took into account the general community interest
in playing cricket in refusing to grant the injunction. Damages were awarded instead. This case was dis
approved of in Kennaway v. Thompson [1981] which concerned the racing of motorboats on a lake. The
Court of Appeal rejected the public interest argument. In more recent times, however, the courts have loo
ked beyond the circumstances and interests of the parties to the litigation in considering whether to grant
an injunction or not.

Conclusion
The law of equity developed in order to soften the rigidity of common law and do justice amongst parties,
where common law rules would have been either inadequate or too formalistic. So equity start invent, rein
vent, modified and modernise the necessity of law in the circumstance of current need. In this format a pe
rson dealing his assets located within a jurisdiction where lawsuit spending are being conducted against h
im. The law of equity fish out the freezing injunction to bring down to an end of such mall practices. So tha
t judgment would not be frustrated. Equitable intervention with the Anton Pillar is an order to prevent the d
estruction of material of valuable evidential importance. In such case where claimant has been poorly co
mpensated as the item inestimable value, it is now possible to order specific performance to protect such i
tems. Therefore ‘nuclear weapon’ of equity to implement it flexible and the adaptable agenda, not against
the common law but in complementary fashion that the rules and principles of common law better fulfilled.