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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 convenient’ to do so.
An injunction is an order by the court to a party to do or refrain from doing a particular act to ensure that justice is done. Court may order to the property owner to stop development work to his/ her own property due 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 property rather than land i.e. confidential client’s database, which is used for previous employer.1 Greek philosopher Aristotle once said that a judge might ignore a legal rule if its literal application would cause an injustice, which the legislator could not have intended. The purpose of equity in this sense is to prevent injustice being caused by the automatic application of legal rules. 2 The equitable remedies considered, are injunctions, 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. The 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 appears to the court to be just and convenient to do so (Beddow v Beddow 1878)
Historical background of Injunction
English law comprises two systems of case law: common law and equity. An understanding of this division is essential to an understanding of trusts, for the trust device is only recognized by equity, not the common law. The rules of equity are those rules, which, prior to the passing of the Judicature Acts 1873–75, were administered by the Court of Chancery. Until that time, there were physically separate courts of common law and equity, each applying their own rules. Sometimes those rules were the same, but often they were different. Today there are no separate courts of law and equity and every High Court judge is empowered to administer the law of both jurisdictions. For the sake of convenience, however, many actions which would 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 jurisdiction 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 court could order a losing defendant to pay damages, a money sum, to the claimant and in cases concerning land could order defendant to get off the land so that the claimant could take possession. If the defendant refused to pay damages, the court would authorise to law enforcement authority to confiscate his/her possessions either hold it until he paid or sell it to raise the claimant’s damages. Similarly, if a defendant refused 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 document 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 neighbour’s factory and is unsatisfied with money damages. He/she would apply to chancery for an injunction to shut the factory down; or would seek an order from chancery for the specific performance of the contract in such case where money damages for breach would not be enough to compensate to affecting party. 4
Applicable principles for issuing the injunction
It can be discretionary remedy based on the inadequacy of common law remedies where specific performance and the characteristics fulfil. Injunction can be remedy in personam like fulfilling specific performance 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 conceived in response to the inappropriateness or inadequacy of damages as a remedy. This principle has been modified in recent times and is now whether it would be just in all the circumstances to confine the claimant 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 1899). On the other hand, the Act 1981 enlarges the pre-existing jurisdiction. (Chief Constable of Kent v V, 1983). 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 world changed so the approach. Modern courts are flexible and responsive to changing world. (Mercedes Benz 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 monetary claim prior to trail. Typically, the injunction is granted at interlocutory stage. It may also issue after trail. Freezing injunction is awarded at an ex parte basis. The plaintiff must make full discloser of all relevant factors of the case. Removing assets from jurisdiction where there is risk that any judgment can go unsatisfied due to deposal or removal such injunction is issued. Such order is issued on interim based pending trail. Or it can be issued post trail where the claimant can show the risk that the defendant can remove his 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 International Bulkcarriers SA 1975. 6
Mareva injunctions have been described being draconian in nature. It can have severe effect on defendant on his or her business. This injunction exposes to this substantive claim that claimant have right to money from the dependent. The first case of freezing injunction was granted 1975 in Nippon Yusen Kaisha v Karageorgis case.
Freezing Injunction requirement.
A freezing injunction is as interim injunction so the usual requirement are recognised in American Cyanamid Co v Ethicon ltd.
- The plaintiff should make full and frank discloser of all matter in his best knowledge which the judge to know.
- 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 he or she fails. 7
A NUCLEAR WEAPON
Due to such importance in commercial litigation, if successful, freezing injunction can often result in an early “knock out blow” against a party who would otherwise seek to evade the enforcement of a judgment obtained against them. The drastic nature of the it led to it being described by Lord Donaldson, in the mid 1980’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 defendants in relation to these orders.
THE PURPOSE OF FREEZING ORDER
Invention of injunction is a creation of judicial innovation. Freezing injunction significantly refined and expanded by case law since 1970s. The freezing order is granted for an important but limited purpose: to prevent a defendant dissipating his assets with the intention or effect of frustrating enforcement of a prospective judgment. They are not a proprietary remedy. They are not granted to give a claimant advance security for his claim if he/she succeeds. But in practice they may have such effect. They are a supplementary, not an end in themselves, granted to protect the efficacy of court proceedings, domestic or foreign. 8
Search order is also an application of equitable jurisdiction. It is known as Anton Pillar Order after one of the 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 injunction. 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 specified 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 are highly critical if the case is involved for intellectual disputes according to Rank Film Distribution Ltd v Video Information Centre case.
There are three conditions for making search order 1. There must be strongly prima facie case, 2. The damage, potential or actual must be very serious for the claimant. 3. There must be clear evidence that defendant has in his possession valuable document or things that there is a real possibility that they made destroy 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 classified in terms of the duration. It could be perpetual, interlocutory and interim. Prohibitory or mandatory injunction may be perpetual or interlocutory. Perpetual does not mean that the effect order must be forever. The 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 discretionary 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 the dispute between the parties. It is exercising as discretion to pays attention and established particular relevance 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 primary function of an interlocutory injunction is to preserve the status quo existing between the parties to an action until the outcome of the main hearing. A claimant must give an undertaking to pay damages to the defendant so that the latter is compensated in the event that an interlocutory injunction is awarded restraining the defendant from an act, which later at trial it is found he was entitled to perform. The old approach was to ask whether the claim would be likely to succeed at trial and, if so, the court would grant an injunction. 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. . In this case, the claimant obtained an interlocutory injunction to restrain the defendants from marketing surgical products in alleged infringement,
Lord Diplock rejected the prima facie case test. His concern was to prevent the court from dealing with complicated questions of law and fact at the interlocutory stage. He stated that the test for the grant of an interlocutory injunction was as follows:
The claimant had to establish that his/her claim was not frivolous or vexatious, in other words that there was ‘a serious question to be tried’. It was established, the court must go on to consider the balance of convenience, 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 granted if damages would be an adequate remedy. The court may also consider whether damages would adequately compensate the defendant if an injunction is granted and the defendant succeeds at trial. Another related issue is whether the plaintiff would be able to pay any damages, which may be awarded at the trial of the action.
A mandatory injunction is a court order compelling a person to perform a certain act. Mandatory injunctions are two types- ‘restorative’ mandatory injunction is one restoring the status quo by requiring the defendant 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 reluctant to issue mandatory than prohibitory injunctions, especially at the interlocutory stage. This is because 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 mandatory 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, which 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 facts that grave damage will accrue to him in the future… It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly
Courts are even more reluctant to grant mandatory injunctions at an interlocutory stage. The question arises, however, as to what is the appropriate test to be applied. Some cases simply adopt the Cyanamid principles, 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 threatened. This injunction may be perpetual or interlocutory, prohibitory or mandatory. A Quia Timet injunction 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 threatened 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 occur. 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 convincing evidence of real danger of actual violation (Angela Drury v Secretary of State for the Environment Food and Rural Affairs  Redland Bricks v Morris 
Lord Upjohn summarises two types of Quia Timet – the defendant has not yet done harm but is threatening and intending to act in a manner which will cause irreparable harm to the plaintiff or his property; and the 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
The function of Mareva or freezing order is to prevent the dissipation or removal of a defendant’s assets prior 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 granted on an ex parte basis. Consequently the plaintiff must make full disclosure of all relevant factors.
The Bayer injunction forbids a defendant from leaving the jurisdiction and is often granted in such case where an existing Mareva injunction or Anton Piller order has not been complied with: Bayer AG v. Winter 
B v B  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 the enforcement of a judgment. The Court cannot simply detain a person in the country until he pays the debt. These injunctions were considered in the European Court of Human Rights in Reiner v Bulgaria (2007) The Court held that there was a violation of Art 13, in conjunction with Art 8 and Art 2 of Protocol 4 in respect 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 confirmed 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 subject to discovery and freezing orders in the UK, an order preventing him from leaving the UK to attend a court 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 mandatory, the restriction was not disproportionate.
Specific performance is an order of the court to one party of the contract that the party must fulfil the terms of the contract. It is rarely granted at common law and will be advocate remedy in the event that the contract is breached. In such case the claimant must show that the damage are not enough remedy in order to invoke equity jurisdiction to grant and order for specific performance. To ask such order from court the claimant 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 court if there is need for court to supervise and monitor constantly for the implementation of its order as it is mention in the case of Co-Operative Insurance Limited v Argyll Stores Ltd. 11
Third parties and Injection
In Miller v. Jackson  Lord Denning refused to grant an injunction to prevent cricket balls from the local 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 disapproved of in Kennaway v. Thompson  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 looked beyond the circumstances and interests of the parties to the litigation in considering whether to grant an injunction or not.
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, reinvent, modified and modernise the necessity of law in the circumstance of current need. In this format a person dealing his assets located within a jurisdiction where lawsuit spending are being conducted against him. The law of equity fish out the freezing injunction to bring down to an end of such mall practices. So that judgment would not be frustrated. Equitable intervention with the Anton Pillar is an order to prevent the destruction of material of valuable evidential importance. In such case where claimant has been poorly compensated as the item inestimable value, it is now possible to order specific performance to protect such items. 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.
- Hudson A, (2017) Equity and Trusts, Rutledge, New York, 9th Edition
- Glister J & Lee J, (2015) Hanbury & Martin Modern Equity, Sweet & Maxwell, 20th Edition, UK, page-752.
- Chambers R, Penner J and Swadling W, (2016) Equity and Trust, , University of London, 2016, London, Page- 11.
- Penner J E, 2012, The Law of Trusts, 9th edition, Oxford University Press, Oxford, Page-6
- McMurtry L and Haley M, (2014) Equity & Trusts, Sweet & Maxwell, UK, Page- 576
- Davies S P, Virgo G, (2013) Equity and Trust text, cases and materials, Oxford University Press, 2nd Edition, Page-991
- Davies S P, Virgo G, (2013) Equity and Trust text, cases and materials, Oxford University Press, 2nd Edition, Page-996
- Rees, H, 2009, FREEZING INJUNCTIONS: A NUCLEAR WEAPON FOR THE COMMERCIAL LITIGATOR, Carter-Ruck Solicitors, London.
- Atkins S, (2016) Equity and Trusts, Rutledge, 2nd Edition, New York.
- Stockwell N & Edwards R, (2015) Trust and Equity, Pearson, 12th Edition. United Kingdom.
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