6. Injunctions

Kinds of injunction

Prohibitory: an order not to do something, such as not to trespass or not to publish. This is the usual kind.

Mandatory: an order to do something, such as pulling down a wall built in breach of covenant. Courts are more careful with these, because they can be harsh and hard to supervise.

Perpetual or final: granted after the trial, once the claimant has proved his right.

Interim: granted before trial to keep things as they are until the case is decided. It used to be called an interlocutory injunction.

Quia timet: granted to stop a wrong that has not happened yet but is threatened and likely, where the harm would be serious.

Final injunctions

A claimant who proves a continuing wrong, such as a nuisance or trespass, is usually entitled to an injunction. The court can give damages instead. In Shelfer v City of London Electric Lighting Co, A. L. Smith LJ said damages may be given in place of an injunction where the injury to the claimant is small, can be valued in money, can be adequately compensated by a small money payment, and where an injunction would be oppressive to the defendant. Those are guidelines, not a rigid test.

Interim injunctions

American Cyanamid v Ethicon sets the approach. The court asks:

1. Is there a serious question to be tried? The claimant does not have to show he will probably win.

2. Would damages be an adequate remedy for the claimant if he won at trial? If yes, and the defendant could pay, there is usually no injunction.

3. If the defendant were restrained and later won, would the claimant's undertaking in damages adequately compensate him?

4. If those questions do not decide it, where does the balance of convenience lie? Keeping the status quo often tips the balance.

The claimant must normally give an undertaking to pay the defendant's losses if it turns out the injunction should not have been granted.

Freezing and search orders

Two special orders came from English practice in the 1970s.

Freezing injunction: stops a defendant moving or hiding assets so that a judgment would be empty. It was first called a Mareva injunction, after Mareva Compania Naviera v International Bulkcarriers. The claimant must show a good arguable case and a real risk that assets will be dissipated.

Search order: lets the claimant's solicitors enter premises to look for and preserve evidence. It was first called an Anton Piller order, after Anton Piller KG v Manufacturing Processes. It is given only where there is an extremely strong case, very serious potential damage, and clear evidence that the defendant has evidence he may destroy.

These are drastic orders. Sierra Leone courts apply the same principles under their general equitable jurisdiction and the High Court Rules.

Bars to an injunction

Delay, acquiescence, the claimant's lack of clean hands, and the fact that an injunction would be useless can each lead the court to refuse relief.