Injunctions

The Nature and Role of Injunctions

Types of Injunction

There are two kinds of injunction:

Prohibitory Injunctions: these prohibit the defendant from acting in a particular manner in the future and/or compel them to end an ongoing, unlawful activity or continuing breach.

Mandatory Injunctions: These require the defendant to do some positive act to undo the consequences of their unlawful actions. They are considerably rarer than prohibitory injunctions.

Both types of injunction are available on an interim basis or as a final remedy after trial. They are available both where a legal wrong has been committed and where one has been threatened but not carried out yet (as long as the claimant can show the wrong is highly likely to imminently happen): Redland Bricks v Morris [1970] AC 652.

Acquiring Injunctions

Requirements for a Prohibitory Injunction

American Cyanamid Co v Ethicon Ltd [1975] AC 396:

Is there a serious issue to be tried (interim injunctions), or has the claimant already succeeded at trial (final injunctions)?
Are damages adequate to compensate the claimant at trial if the defendant is allowed to continue acting in the relevant way?
Are damages adequate to compensate the defendant at trial if they are prevented from acting in the relevant way?
If (2) or (3) are in doubt, where does the balance of convenience lie?

Requirements for a Mandatory Injunction

Nottingham Building Society v Eurodynamics Systems [1993] FSR 468:

Does the Court have a high degree of assurance that the claimant will succeed at trial (interim injunctions), or has the claimant already succeeded at trial (final injunctions)?
Does the risk of injustice to the claimant if the injunction is refused outweigh the risk of injustice to the defendant if the injunction is granted?
Are damages adequate to compensate the claimant at trial if the defendant is allowed to continue acting in the relevant way?
Are damages adequate to compensate the defendant at trial if they are prevented from acting in the relevant way?
If (3) or (4) are in doubt, where does the balance of convenience lie?

What is a Serious Issue to be Tried?

There is a serious issue to be tried if the claimant can establish that they have a more than fanciful chance of succeeding in establishing a recognised cause of action at trial: Alfred Dunhill v Sunoptic [1979] FSR 337.

Adequacy of Damages

Factors the courts will consider when determining if damages would be adequate for either party include:

Whether the party has suffered any non-pecuniary losses and how easily those losses can be assessed: Alfred Dunhill v Sunoptic [1979] FSR 337;
Whether the party is able to take steps to avoid suffering loss: Powell v Brent LBC [1988] ICR 176.

Assessing the Balance of Convenience

The starting presumption is that the balance of convenience requires the status quo to be maintained. Factors relevant to where the balance lies include:

How inconvenient or damaging the injunction would be to the defendant;
The merits of each party’s case, but only if the merits of one side’s case is disproportionately greater than the other: American Cyanamid Co v Ethicon Ltd [1975] AC 396.