Guyana Bar Association Law Lecture Series 2007
Presenter: Mr. Robin M.S. Stoby.
Senior Partner. Hughes Fields & Stoby.
Saturday 21st July 2007. Supreme Court Library.
INJUNCTIONS
The power of the High Court to grant injunctions is confirmed by Section 23 of the High Court Act Cap 3:02, but derives from the pre-Judicature Act 1873, and the powers of the Chancery Courts and others to grant injunctions (Fourie –v- LeRoux [2007] UKHL 1). The judicature Act 1873 transferred the jurisdiction of the Chancery and Common Law Courts to the High Court of Justice, and it is that jurisdiction that we have inherited in Guyana. Now the jurisdiction issue to grant an injunction was addressed recently in the Fourie Case (Para 25 per Lord Scott of Forscote) in this way – “Jurisdiction is a word of some ambiguity. The ambiguity was referred to by Pickford LJ in Guaranty Trust Co of New York –v- Hannay & co [1915] 2 KB 536 at 563. He said: ‘The first and in my opinion, the only really correct sense of the expression that the court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e. that, although the court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances’. It seems to me clear that Park J. had jurisdiction in the strict sense, to grant an injunction against Mr. Le Roux and Fintrade. Both were within the territorial jurisdiction of the court at the time the freezing order was made. Both were, shortly after the freezing order was made, served with an originating summons in which relief in the form of the freezing order was sought. ………The issue is, in my opinion, not whether Park J had jurisdiction in the strict sense, to make the freezing order but whether it was proper, in the circumstances as they stood at the time he made the order, to make it. This question does not in the least involve a review of the area of discretion available to any judge who is asked to grant injunctive relief. It involves an examination of the restrictions and limitations which have been placed by a combination of judicial precedent and the rules of court on the circumstances in which injunctive relief in question can properly be granted…..the question is whether it was proper for Park J to make the order.” The first question therefore for any court is to satisfy itself that it has jurisdiction in both senses before considering the discretion element, in the above case, there had been no substantive proceedings of claim filed before the order was made, and the House of Lords considered it a technical breach sufficient to set aside the injunction.
We have nevertheless to understand that the power to grant an injunction does not depend upon the existence of property; independently of any question as to the right at law, the Court of Chancery had an original and independent jurisdiction to prevent what it considered an injury, whether arising from a violation of an unquestionable right or from a breach of contract or confidence (Halsbury’s Laws of England, 4th Ed, Vol 24, Para 916).
In fact the discretion of whether or not to grant an injunction is so wide that it has been made in cases as disparate as Khorasandjian –v- Bush [1993] 3 WLR 476 where the court granted an injunction to prevent oral harassment by telephone calls made to the litigant at her parents house where she lived even though the calls could not strictly be classified as threats, provided that the cumulative effect of them was to cause illness of a physical or psychiatric nature, and in C-v- K (Ouster Order: Non Parent) [1996] 3 FCR 488¸ where a stranger was excluded from property in which he had a proprietary interest where his behavior interfered with the rights of a person with parental responsibility for a child to exercise those rights appropriately.
The Statutory Jurisdiction under the High Court Act S. 23 permits the grant of an injunction in al cases where “it is just and convenient” to do so. Rules of Court also specify that an interlocutory injunction may be granted “In any cause or matter in which an injunction has been or might have been claimed, the Plaintiff may, before or after judgment, apply for an injunction to restrain the Defendant or Respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of any injury or breach of contract of a like kind relating to the same property or right, or arising out of the same contract; and the court or a judge may grant the injunction, either upon or without terms as may be just” (O. 39 R. 9).
However these statutory provisions did not alter the principles upon which the court acted in granting injunctions, and did not enlarge the jurisdiction of the court so as to enable it to grant an injunction in a case in which, before the provision came into force, there was no right on the one side or no liability on the other at law or in equity (Halsbury’s Laws of England, 4th Ed, Vol 24, Para 918).
In this regard the term “just or convenient” must be read “just as well as convenient” (Day –v- Brownrigg (1878) 10 ChD 294, at 307 per Jessel MR), in other words it could not be convenient if it was not also just, and in considering what is just you “have regard also to what is convenient” (Beddow –v- Beddow [1878] 9 ChD 89, at 93). This phrase has been also determined to mean that an injunction is not to granted whimsically or arbitrarily but in accordance with legal principles and by use of regulated discretion (Harris –v- Beauchamp Bros [1894] 1 QB 801, at 809 per Davey LJ).
Now the big test of the usefulness of injunctions is seen in the arena of interlocutory injunctions, the grant of which has been the subject of much public criticism. Ancient authority shows us that where an interlocutory injunction is prayed in aid of a Plaintiff’s alleged right, the court will usually wish to consider whether the case is so clear and free from objection on equitable grounds that it ought to interfere to preserve property (rights) without waiting for the right to be finally established (Halsbury’s Laws of England, 4th Ed, Vol 24, Para 953; Eastern Trust Co-v- McKenzie, Mann & Co Ltd [1915] AC 750, at 760, PC). It is interesting to note that in the latter case, the court held that the executive had no power to override a judgment of the court.
However in all cases the circumstances which may be compelling for the court to grant an injunction are myriad, but in the end it must also be remembered that the court will not grant an interlocutory injunction as of course (Potter –v- Chapman (1750) Amb 98, at 99: 27 ER 61);
The tendency to avoid trying the same question twice and to grant injunctions only in clear cases are two of the principles that emerge from the authorities. However, where there is no doubt as to the legal rights an interlocutory injunction will be granted, and it is no objection that the relief so granted is substantially the same as the whole relief claimed in the action except that it is only to endure until the hearing of action (Halsbury’s Laws of England, 4th Ed, Vol 24, Para 953; AG –v- Stockton-on-Tees Corpn [1927] 91 JP 172, at 174; this was doubted in N.W.L. Ltd –v- Woods [1979] 1WLR 1294, at 1306-7, per Lord Diplock, who preferred the test of “likelihood of success at the trial”, to that of a “serious issue to be tried”).
It is not necessary that the court should find a case which would entitle the plaintiff to relief at all events; it is quite sufficient for it to find a case which shows that there is a substantial question to be investigated, one in other words which is not “frivolous or vexatious” , or one where the Plaintiff has no real prospect of succeeding in his claim for a permanent injunction at the trial of the action, and further that the status quo should be preserved until that question can be finally disposed of, and not on the basis as was previously thought, where a prima facie case of infringement had been established (American Cynamid Co –v- Ethicon Ltd [1975 AC 396, at 407-8) .
Each case must be decided on a basis of fairness, justice and common sense in relation to the whole issues of fact and law which are relevant in the particular case (Hubbard v Vosper [1972] 2 Q B 84 at 98, CA, per Megaw LJ). Doubt as to whether a permanent injunction will be granted at the trial does not, as matter of law, preclude the issue of an interlocutory injunction (Evans Marshall & Co Ltd v Bertola S A [1973] I WLR 349 to 368, CA). Similar principles apply in the application for the grant of a mandatory injunction (Films Rover International Ltd –v- Cannon Film Sales Ltd [1987] 1 WLR 670), though recent authority has preferred the test of “a strong and clear case” and “ a high degree of assurance that at the trial it will appear that the injunction was rightly granted, thereby imposing a higher standard of proof than that required for the grant of a prohibitory injunction.” (Infochannel –v- Cable & Wireless [2000] 63 WIR 176, at 224)
Also where a judge dismisses an interlocutory motion for an injunction he nevertheless has jurisdiction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal; it is not necessary for the applicant to apply to the Court of Appeal (Erinford Properties Ltd v Cheshire County Council [1974] Ch 261).
The American Cynamid case has of course been adopted here in the cases of Pereira –v- Manning [1988] 42 WIR 209, Georgetown –v- Hughes and Others [1997] 56 WIR 313, Anne Payne –v- The Town Clerk of Georgetown, CA 36 of 2001, Ramkissoon –v- Ramkissoon, CA 23 of 2001, to name a few.
The standards to be applied in the consideration of whether to grant the in junction therefore include – a. A serious issue to be tried (just), b. The balance of convenience (convenient), c. Whether damages afford adequate compensation, and d. The maintenance of the Status Quo..
In the N.W.L. Case Lord Diplock explained further what amounted to a balance of convenience he said – “In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather the other at a stage when the evidence is incomplete. …The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other; and this is what I understand to be the thrust of the decision of this House in American Cyanamid co. –v- Ethicon Ltd.”
The question of adequacy of damages, has also been further clarified In –
Bath and North East Somerset District Council –v- Mowlem Plc [2004] EWCA Civ 115, where the court found that it was not a question of whether the Plaintiff will recover some damages, but whether the damages he may recover are adequate to compensate him for the loss he may suffer before the trial. In the latter case the damages that were in consideration was liquidated damages agreed by the parties in their contract, but did not take into account additional damage that may be difficult to quantify.
At the end of the day the court must weigh the relative questions before addressing whether to grant or refuse the injunction. As was referred to in the Bath case – “The question arises in each application for an interlocutory injunction as to the point on a broad spectrum at which the particular circumstances of the case in question may fit in, and what additional factors there may be to place into the balance of convenience”.
It would be no great injustice if the return on the hearing of the injunction could be urgently addressed by the court. The injunction does of course continue until determined by the court, it does not lapse if on an adjourned consideration of the matter the court does not formally declare that the injunction is to continue until the next hearing date; this is the effect of N Elias and sons Ltd –v- George Elias [1971] GLR 342.
One other point needs to be considered, and that is whether and to what extent should the court address the question of the undertaking as to damages. In Vinelli Industries Ltd –v- Ricks & Sari Industries Ltd, Action No. 1366 of 1983, the honourable Ms. Justice Bernard (as she then was) considered this point, she said (without deciding the issue), that “If the defendants were to succeed at the trial in establishing their right to use the the name ‘Cream of Rice’ will they be adequately compensated under the plaintiffs’ undertaking as to damages for the loss they would have sustained by being prevented from doing so between the time of the application and the time of trial. ….It is in circumstances such as these that a court has to consider where the balance of convenience lies.” Later the Court of Appeal in the case of Ramkissoon –v- Ramkissoon, CA 23 of 2001, also made much of this issue to the extent that it discharged an injunction on the basis that the affidavit evidence did not address this subject. The Honourable Mr. Justice Ian Chang J.A. said – “In the opinion of this court, the affidavit in support of the application was woefully deficint since it did not address the issue of the appellants ability to honour his undertaking as to damages thereon and ought to have been dismissed.” My comment is that his question ought not to be considered as a matter of great weight since the imputation is that only persons who are possessed of some substance are entitled to approach the courts for an interlocutory injunction, rather it ought to be only regarded as of prominence where the case for the Plaintiff is shrouded in some doubt or is barely within the concept of a serious issue to be tried, or shows some other factor that makes the balance of convenience equal between the parties. It has been said in Injunctions by David Bean, 7th Ed, P. 29 that “The fact that a plaintiff is legally aided or of limited means does not preclude the grant of an injunction in a proper case, with an undertaking as to damages being given even though it is likely to prove of little worth (Allen –v- Jumbo Holdings Ltd [ 1980] 1 WLR 1252).
21-7-2007
R. M. S. STOBY S. C.
At the presentation of this topic on Saturday June 19th 2007, it was suggested by Mr. Stephen Fraser that a reference should be made particularly to the approach of the court in the case of ex parte applications for interim injunctions. In the light of his request, I have penned these additional thoughts:
Ex Parte Applications
When an application is made ex parte for an interim injunction, a court should be minded to consider the very nature of such an application. It goes without saying, that the application is made in the absence of the Defendant party and purely on the assertions of fact and law put forward by the applicant. The court would be minded to consider not only the procedural propriety of such an application, such as the general requirement that a substantial claim by way of Writ of Summons or some other commencement proceedings is already filed, or filed at the same time, or is undertaken to be filed promptly thereafter (Adanac Industries Ltd –v- Black 5 WIR 233), but also whether the matter discloses a property right or other right that has in fact been infringed or for which there is reasonable grounds for believing that there is a threat of infringement by the Defendant.(Dalpat –v- Mars [1959] LRBG 23; Demerara Turf Club –v- Phang [1962] LRBG 315; as approved in Perreira –v- Manning [1988] 42 WIR 209).
The court would therefore need to be reassured about the certainty of the Plaintiff’s case particularly as it is often being asked to make a decision in hurried circumstances. Even though it is said that the court is not required to be convinced that the Plaintiff has a prima facie case requiring the protection of the court (Fellowes & Sons –v- Fisher [1975] 3 WLR 184), nevertheless in practice a court would wish to feel certain of the correctness or strength of the Plaintiff’s legal position before it grants an ex parte order, not least because it is acting outside of the scope of the audi alteram partem principle, allbeit temporarily; on the question of strength or weakness of the Plaintiff’s case, this was a consideration in the case of Belize Alliance –v- Department of the Enviorment [2003] 63 WIR 42, at 60 (PC) , which though a public law matter, nevertheless may have some bearing on a court’s consideration of the ex parte remedy.
An ex parte injunction may also be varied or discharged by means of an ex parte application to do so , but such application should be brought promptly and at least before the return date for the continuation of the injunction, and should be supported by “sufficiently cogent grounds” (Ramkasie Manogeesingh –v- Airports Authority [1985] 42 WIR 301
In making its decision a Court, and more particularly Counsel in preparing the application, might once again wish to go through a virtual checklist of the requirements for the grant of the remedy, which include but is by no means exhaustive the following considerations –
(a). The propriety of the remedy (as was considered in Fourie’s Case);
(b). The soundness of the Plaintiff’s right it is alleged is being infringed (Perreira’s Case);
(c). The urgency with which the application has been pursued (Jaggard –v- Sawyer [1995] 1 WLR 269);
(d). The facts giving rise to the allegation of infringement, as constituting a serious issue (Bank Mellat –v- Nikpour [1985] FSR 87);
(e). The gravity of the alleged infringement for which an award of damages as a remedy would be inadequate (Shelfer –v- City of LondonElectric Lighting co [1895] 1 Ch 287) but note ,that a strong Trinidad Court of Appeal in Jetpak Services Ltd –v- BWIA International Airways Ltd [1998] 55 WIR 362,doubted whether the rule should be so narrowly stated and preferred to qualify the rule with the consideration “Where does the greater risk of injustice lie, in granting the injunction or in refusing it”, per de la Bastide CJ at 370);
(f). The convenience of granting the remedy as against the inconvenience that may be suffered by the Defendant in preventing him from continuing his alleged actions (American Cynamid case);
(g). Any defences or arguments that may be available to the Defendant that might be advanced against the grant of the remedy (Third Chandris Shipping Corp –v- Unimarine SA [1979] QB 645).;
(h). Any other material circumstances that might militate for or against the grant (Ramada International Inc –v- Issa Nicholas (Grenada) Ltd, Civil Appeal No. 13 of 1987 [Grenada));.
(i). An undertaking as to damages for which the court must be satisfied the plaintiff must be “good for the undertaking” (Ramkissoon’s case).
It is also important to emphasize that the grant of an interim injunction requires complete disclosure by the applicant in the ex parte proceedings. This factor can not be more seriously put than the saying that such applications must show utmost good faith in view of the fact that the doctrine of uberrimae fidei applies (David Bean on Injunctions, 7th Ed, P. 41).
It has been said, that the failure to disclose all material facts known to the applicant or ought after reasonable inquirery to have been known to the applicant, or where there has been a misstatement of the facts which a court finds to have been material for the court to have known, then the injunction may be dissolved on that basis. As it was put in the Ramada Case, per Haynes P. that “If any mis-statement or suppression of fact induced the ex parte order or might have done so or might have influenced or help to influence the Court’s mind one way or the other about what was to be done, the order should go.” Such a consideration has been held to particularly affect matters where the failure is not perceived to be innocent. In the case of innocent failure, the court may be moved in the exercise of its discretion to afford a “locus poenitentiae” and not require an automatic discharge (Bank Mellat Case, per Lord Denning M.R. at page 90). Such considerations are a matter purely for the discretion of the Court who has the sole right to consider whether the failure was material, and whether the injunction might nevertheless be continued or made over afresh on terms (Brink’s Mat Ltd –v- Elcombe [1988] 1 WLR 1350).
I conclude by observing in relation to the latter case, that it would be heavy burden for a litigant who has been found guilty of material non-disclosure or mis-statement of facts, to persuade a court that such failure was innocently done, and that the purity of the ex parte order should be affirmed.