Injunction

11 Key excerpts on "Injunction"

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  Equity and Trusts in Australia

  • Michael Bryan, Vicki Vann(Authors)
  • 2012(Publication Date)
  • Cambridge University Press

    (Publisher)

  30 ................................................................................................................................................................................. 25 Turner v Bladin (1951) 82 CLR 463. 26 Beswick v Beswick [1968] AC 58. 27 Ibid. 28 In Loan Investment Corp of Australasia v Bonner [1970] NZLR 724 the Privy Council was divided on the question of whether a contract for the sale of land which formed part of a broader commercial transaction attracted the application of the principle that land contracts were specifically enforceable. 29 See [3.4]. 30 See chapter 6. B 40 PART B EQUITABLE REMEDIES Injunctions An Injunction is an order enforcing legal or equitable rights, 31 either by restraining [3.13] the doing of an unlawful act, or by requiring a particular act to be done, and is equity’s principal coercive remedy. Injunctions are available in both the exclusive and auxiliary jurisdiction of equity. In the exclusive jurisdiction they enforce equi- table rights. In the auxiliary jurisdiction they are used to support common law rights. Injunctions can be classified as follows: (a) Mandatory or prohibitory. Mandatory Injunctions are positive, compelling the defendant to perform an act; prohibitory Injunctions are negative, requir- ing the defendant to refrain from carrying out an act. (b) Perpetual, interim and interlocutory. Perpetual Injunctions are final, settling all outstanding issues between the parties. ‘Perpetual’ does not mean that that the order is of perpetual duration; it indicates that a final order has been made in a civil action following argument by both sides. Interim Injunctions are temporary, effective only for a limited period of time. An interlocutory Injunction preserves the rights of parties pending trial. (c) Ex parte. An Injunction may be required so urgently that the plaintiff does not have time to serve notice on the defendant that the application is being made.

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  Optimize Equity and Trusts

  • Judith Riches(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  Equitable Remedies 14 Revision objectives ? Understand the law Remember the details Reflect critically on areas of debate Contextualise Apply your skills and knowledge American Cyanamid Human Rights Act 1998 ? a Chapter Map General principles regarding Injunctions Types of Injunction Defences to claims for an Injunction A freezing Injunction, a search order Guidelines governing the grant of an interim Injunction Special types of interim Injunction Injunctions Interim Injunctions Mandatory, prohibitory, interim, perpetual, quia timet Delay by claimant, hardship to defendant, claimant did not come with clean hands, public interest to be taken into account Must be interference with legal or equitable right; it is a discretionary remedy; damages inadequate; conduct of claimant relevant; equity acts in personam Contracts where specific performance is unlikely to be ordered Contracts where specific performance may be ordered Defences to a decree of specific performance Specific performance 304 Optimize Equity and Trusts Types of Injunction Jurisdiction to grant Injunctions is governed by s37(1) Senior Courts Act 1981. Classification of Injunctions According to the nature of the obligation According to the duration of the Injunction A mandatory Injunction, i.e. an order requiring the defendant to act A prohibitory Injunction, i.e. an order requiring the defendant to refrain from acting An interim Injunction, formerly called an interlocutory Injunction A perpetual Injunction, i.e. a final or permanent Injunction A mandatory Injunction The courts are reluctant to grant a mandatory Injunction that compels a defend- ant to perform an act. This is partly because of the need to phrase the order suf- ficiently precisely to make it clear what the defendant is required to do, and partly because the court may be required to monitor performance.

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  Equity and Trusts in Australia

  • Michael Bryan, Vicki Vann, Susan Barkehall Thomas(Authors)
  • 2017(Publication Date)
  • Cambridge University Press

    (Publisher)

  30 See [3.4]. 31 See chapter 6. 32 Statutory Injunctions are not covered in this book. B 38 PART B: EQUITABLE REMEDIES In the exclusive jurisdiction they enforce equitable rights. In the auxiliary jurisdiction they are used to support common law rights. Injunctions can be classified as follows: (a) Mandatory or prohibitory. Mandatory Injunctions are positive, compelling the defend- ant to perform an act; prohibitory Injunctions are negative, requiring the defendant to refrain from carrying out an act. 33 (b) Perpetual, interim and interlocutory. Perpetual Injunctions are final, settling all outstanding issues between the parties. ‘Perpetual’ does not mean that the order is of perpetual duration; it indicates that a final order has been made in a civil action following argument by both sides. Interim Injunctions are temporary, effective only for a limited period of time. An interlocutory Injunction preserves the rights of parties pending trial. (c) Ex parte. An Injunction may be required so urgently that the plaintiff does not have time to serve notice on the defendant that the application is being made. Alternatively, the plaintiff might apply for an ex parte order where there is a risk the defendant will simply take steps to avoid the court’s order. An Injunction granted without giving prior notice to the party who will be bound by its terms is an ‘ex parte’ Injunction. Notice is given to the defendant once the Injunction is granted so that the defendant will know precisely how he must comply with its terms, and to give him the opportunity to have the order set aside or varied. (d) Quia timet. This Injunction protects the plaintiff’s rights where an infringement is threatened but has not yet occurred. For example, a quia timet Injunction will be granted to prevent a property development if residents affected by the development prove that once completed it will constitute a nuisance.

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  Injunctions against Intermediaries in the European Union

  Accountable but Not Liable?

  • Martin Husovec(Author)
  • 2017(Publication Date)
  • Cambridge University Press

    (Publisher)

  et al. v. McNeil, Bonnar et al. [2007] BCSC 454 and Pierce v. Canjex Publishing Ltd. [2011] BCSC 1503; GEA Group AG v. Flex-N-Gate Corporation [2009] ONCA 619 Injunctions in Common Law: England 187 permanent Injunctions. So-called quia timet Injunctions, the Injunctions granted before the completion of any wrongful acts or occurrence of their consequences, 24 can take both forms. Common law also distinguishes between mandatory and pro- hibitory Injunctions. While a mandatory Injunction commands the defendant to carry out a specific act, a prohibitory Injunction restrains him from doing some- thing. Injunctions against (innocent) intermediaries, such as identity disclosures and website blocking Injunctions, are types of such mandatory Injunctions, along with reverse publicity orders or freezing orders. 25 The powers of the courts with equitable jurisdiction to grant Injunctions are, subject to relevant statutory restrictions, unlimited. 26 Lord Goff expressed this in one of the House of Lords decisions as follows: I am reluctant to accept the proposition that the power of the court to grant injunc- tions is restricted to certain exclusive categories. That power is unfettered by statute; and it is impossible for us now to foresee every circumstance in which it may be thought right to make the remedy available. 27 This does not mean that the judges are absolutely free of any restrains. The injunc- tions are granted only if they accord with the principles of equity, since equity is their ultimate source. Such principles embodied in numerous doctrines and prac- tice, limit the discretion of judges.

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  Remedies in Australian Private Law

  • Katy Barnett, Sirko Harder(Authors)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  For example, a defendant’s assets may be seized and sold to pay for an outstanding judg- ment debt, or a defendant who refuses to specifically enforce a contract when ordered to do so may be gaoled for contempt of court. 435 II Interlocutory Injunctions Interlocutory Injunctions are Injunctions granted prior to final judgment. They gen- erally last until trial or further order. They are frequently sought to preserve the status quo until trial can take place. 1 This enables justice to be done when the final order is made once the rights of the parties are ascertained. Otherwise, the person against whom the final order is made may have dealt with the subject matter of the dispute in a way which makes the judgment worthless. 2 For example, in a dispute involving the right to take stones from a beach, the plaintiff alleged that the defendant’s removal of stones had left his house unprotected from the sea, and the court was prepared to award an interlocutory Injunction restraining the defendant from collecting further stones until the matter could be finally determined. 3 Interlocutory Injunctions are granted on a discretionary basis. Generally speaking, appellate courts do not overturn the decision to withhold or grant interlocutory Injunctions unless there are exceptional circumstances which require it, such as an error of law or fact. An appellate court will not overturn a decision to grant or withhold an interlocutory Injunction simply because it would have exercised the discretion in a different manner. 4 A usual condition of the plaintiff obtaining an interlocutory Injunction is an ‘under- taking as to damages’ . 5 The plaintiff undertakes to compensate the defendant for any losses flowing from compliance with the Injunction if the defendant is ultimately successful at trial. 6 This ensures that people do not seek Injunctions lightly. Interim Injunctions are different to interlocutory Injunctions, although sometimes the terms are used interchangeably.

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  Injunctions in Patent Law

  Trans-Atlantic Dialogues on Flexibility and Tailoring

  • Jorge L. Contreras, Martin Husovec(Authors)
  • 2022(Publication Date)
  • Cambridge University Press

    (Publisher)

  1 Until the second half of the nineteenth century, such relief was only granted by the Court of Chancery, whereas patent cases were tried in Courts of Law. After the Judicature 1 For an early treatment, see Hindmarch 1846, 361. 261 Acts, all branches of the High Court could grant injunctive relief. This jurisdiction is now recognised by section 37 of the Senior Courts Act 1981, 2 which states that the High 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”. Provided the court has in personam jurisdiction over the person against whom an Injunction, whether interlocutory or final, is sought, the court has power to grant it. 3 Nevertheless, the grant of injunctive relief is frequently described as being an “equitable remedy”, and therefore as being discretionary. This does not mean that Injunctions are granted arbitrarily; they are granted in accordance with established principles. It does mean that those principles have evolved over time and can be adapted to deal with new situations. 4 1. Final Injunctions In Coflexip SA v. Stolt Comex Seaway MS Ltd, Aldous LJ explained the basic principle that a patentee who succeeds in establishing infringement will normally be entitled to a final Injunction (also known as a permanent Injunction, although such an Injunction will expire when the patent expires, as discussed in Section H.1): 5 Where a patentee has conclusively established the validity of his patent and that it had been infringed, as a general rule an Injunction will be granted. However that will not happen as a matter of course as an Injunction is a discretionary remedy. It is for that reason there have been cases where Injunctions have been refused, for example, where the defendant satisfied the court that further infringement was not likely.

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  Remedies in Construction Law

  • Roger ter Haar(Author)
  • 2017(Publication Date)
  • Informa Law from Routledge

    (Publisher)

  21.62 Construction projects very often involve an employer of one nationality contracting with a contractor of a different nationality sometimes in respect of a project in yet a third country. In this situation there are frequently advantages to one or other party if any dispute is conducted in one country rather than another. In these circumstances the court may be asked to issue an Injunction effectively determining the country in which the dispute will be heard.

  21.63 Where the parties have agreed that a particular dispute is to be within the exclusive jurisdiction of a particular court, that gives rise to a contractual right that generally will be enforced by the courts by the order of a stay or an anti-suit Injunction.105 However the position is more complicated where no such agreement exists.

  21.64 In a number of cases the courts have developed the principles upon which the court will intervene in circumstances where there is no such right to have proceedings determined in a particular court. The origin of the court’s acceptance of such a jurisdiction goes back to the early part of the nineteenth century:

  “Injunction, being an equitable remedy, operates in personam. It has been used to order parties amenable to the court’s jurisdiction ‘to take, or omit to take, any steps and proceedings in any other court of justice, whether in this country, or in a foreign country’; Leach V-C in Bushby v Munday106 … The English court, as the Vice-Chancellor went on to say, ‘does not pretend to any interference with the other court; it acts upon the defendant by punishment of his contempt in his disobedience to the order of the court’. The jurisdiction, which has been frequently exercised since 1821, was reviewed by the Court of Appeal in Ellerman Lines Ltd v Read107 … Scrutton LJ in that case quoted with approval a passage from the judgment of Brougham LJ in Lord Portarlington v Soulby108 … where the Lord Chancellor affirmed that ‘the Injunction was not directed to the foreign court, but to the party within the jurisdiction here’. I would not, however, leave Ellerman’s case without a reference to the warning of Eve J, at p. 158: ‘No doubt the jurisdiction is to be exercised with caution’.”109

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  Remedies in Australian Private Law

  • Katy Barnett, Sirko Harder(Authors)
  • 2018(Publication Date)
  • Cambridge University Press

    (Publisher)

  For example, a defendant’s assets may be seized and sold to pay for an outstanding judgment debt, or a defendant who refuses to specifically enforce a contract when ordered to do so may be gaoled for contempt of court. II Interlocutory Injunctions [20:4] Interlocutory Injunctions are Injunctions granted prior to final judgment. They generally last until trial or further order. They are frequently sought to preserve the status quo until trial can take place. 1 This enables justice to be done when the final order is made once the rights of the parties are ascertained. Otherwise, the person against whom the final order is made may have dealt with the subject matter of the dispute in a way which makes the judgment worthless. 2 For example, in a dispute involving the right to take stones from a beach, the plaintiff alleged that the defendant’s removal of stones had left his house unprotected from the sea, and the court was prepared to award an interlocutory Injunction restraining the defendant from collecting further stones until the matter could be finally determined. 3 [20:5] Interlocutory Injunctions are granted on a discretionary basis. Generally, appellate courts do not overturn the decision to withhold or grant interlocutory Injunctions unless there are exceptional circumstances which require it, such as an error of law or fact. An appellate court ................................................................................................................................................................................................................................ 1 Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349; Hubbard v Vosper [1972] 2 QB 84, 96 (Lord Denning MR). See ICF Spry, The Principles of Equitable Remedies (9th edn, LBC 2014) 462–65. 2 Preston v Luck (1884) 27 Ch D 497, 505; Heavener v Loomes (1924) 34 CLR 306, 325–26; National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] UKPC 16, [2009] 1 WLR 1405.

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  Patent Remedies and Complex Products

  Toward a Global Consensus

  • C. Bradford Biddle, Jorge L. Contreras, Brian J. Love, Norman V. Siebrasse(Authors)
  • 2019(Publication Date)
  • Cambridge University Press

    (Publisher)

  But of course, a court needs to weigh this potential benefit of delay against the harm that a patent holder is expected to suffer in the meantime. 4.3 COMPARATIVE OVERVIEW OF Injunction PRACTICES 4.3.1 Overview A permanent Injunction is an available form of relief in all patent law systems. 43 In all major legal systems Injunctions have traditionally been available almost automatically in case of patent infringement, so long as there is some real threat of future infringement. This tradition has come under pressure recently, with the confluence of several factors, including the rise of patent assertion entities (PAEs), litigation over standard-essential patents subject to FRAND commit- ments, and the general rise in litigation involving complex products, where an Injunction to prevent infringement by a minor feature may keep the entire product off the market. For comparative purposes, the various legal systems can be divided into three broad categories: the United States, other common law countries, and civil law countries. In most civil law countries, such as Germany, a successful patentee is considered to be entitled to an Injunction as a matter of right. 44 The ability to obtain injunctive relief may be restrained, however, through various types of generally applied defenses, such as abuse of rights or lack of good faith, as well as by competi- tion law. In countries with a common law tradition, such as England and the United States, injunctive relief has long been recognized as being discretionary in principle, notwithstanding the traditional practice of granting Injunctions almost automati- cally in patent cases. However, since the Supreme Court of the United States decision in eBay, practice in the common law countries has diverged. In most countries, including England, there remains a strong presumption in favor of 43 Indeed, the TRIPS Agreement provides that a permanent Injunction must be an available remedy: see TRIPS Agreement, art.

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  National Security and the D-Notice System

  • Pauline Sadler(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  7

  Injunctions to Restrain a Breach of the Criminal Law -U.K. and Australia

  From the government point of view the most desirable outcome would be to prevent sensitive information from being published at all, and injunctive relief, as a legally enforceable remedy, would be the best way in which to achieve this end. It goes without saying that the extra-legal D-Notice system would also serve to suppress the information but, because the system is voluntary and the government cannot enforce any decisions not to publish, it is not as reliable as an Injunction. The question arises as to why the two governments have not sought to restrain by Injunction breaches of the respective official secrets legislation in their countries. The answer is that Injunctions, a civil remedy, are riot readily granted by the courts to restrain criminal acts (Aronson and Dyer, 1996; Author not identified, undated; Attorney-General’s Department, 1994; The Law Reform Commission (Australia), 1985).

  There is, nonetheless, a long line of cases where Injunctions have been granted to restrain a breach of the criminal law. The procedure usually relates to a statutory offence, although it was first used in cases of public nuisance. For example in the case of The Mayor and Commonalty and Citizens of the City of London v Bolt (1799) 5 Ves. Jun. 129, an Injunction (based on public nuisance) was granted by Lord Chancellor Loughborough to prevent the use of ramshackle old houses in London as temporary warehouses for the storage of sugar, which made the buildings dangerous to the public. In A-G v Cleaver (1811) 18 Ves. Jun. 212 Lord Chancellor Eldon, while admitting jurisdiction, stood over for trial by jury on the issue of fact an application by the A-G at the relation of individuals for an Injunction (based on public nuisance) to prevent the defendants from continuing their manufacture of soap and soap by products in Battersea. In Crowder v Tinkler (1816) 19 Ves. Jun. 618, Lord Chancellor Eldon granted an Injunction limiting the amount of gunpowder the defendant could store in a newly built corning-mill until trial at the next Assizes of the issue of whether the corning-mill amounted to a public nuisance. It is clear from the terminology in these three cases on nuisance that the action was being dealt with as a criminal rather than a civil matter. Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435, without citing, any authorities, makes reference to this historical usage. In Cooper v Whittingham (1880) 15 Ch 501, the plaintiffs were granted an ex parte Injunction, based on s17 (breach of which was an offence) of the Copyright Act

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  Text, Cases and Materials on Equity and Trusts

  • Mohamed Ramjohn(Author)
  • 2008(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  Kennard v. Cory Bros. & Co. Ltd. [1922] 1 Ch. 265 at the foot of p. 274 (his judgment was affirmed in the Court of Appeal [1922] 2 Ch. 1).
• If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory Injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.