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INJUNCTIONS


 

Definition

An injunction is an order of the court directing a party to the proceedings to do something or to refrain from doing a specified act.  It is granted in cases in which monetary compensation affords an inadequate remedy to an injured party.

1.            Prohibitory Injunction:
2.            Mandatory Injunction:
3.            Perpetual Injunction:
4.            Interlocutory Injunction:
5.            Quia Timet (Anticipatory)

Prohibitory Injunction is restrictive because a person is prohibited or restrained from doing a particular act.  A person can be ordered to refrain from continuing to do something if he may already have started to do the act. This is an injunction restraining the doing or continuance of some wrongful act.  These injunctions are far more common than mandatory injunctions.  Thus a court which wishes to secure removal of buildings wrongfully erected can order the defendant not to allow them to remain on the land, a form of order which seems strange in a jurisdiction which traditionally looks to substance rather than form.

Mandatory Injunction

This is an injunction to restrain continuance of some wrongful omission.  A mandatory injunction is made in a positive form, ordering some act to be done.
Divided into
(a)          Restoration Mandatory Injunctions require the defendant to undo a wrongful act, to restore the status so that the damage does not continue.
(b)          Mandatory Injunction proper – this compels the defendant to carry out some positive act to remedy a wrongful omission.

If a contract is involved the plaintiff would be likely to go for specific performance.  However the mandatory injunction has the same consequences.

Injunctions were all couched in the same prohibitive language for example a court order would sound like this “the defendant is hereby ordered not to allow the buildings to remain on the land” as opposed to the defendant is hereby ordered to demolish the building.  The idea is to make it sound prohibitive.  Snell made a comment that for a court of equity that concerned itself more with substance than form should be so concerned as to form.

Jackson v. Normanby Brick Co. [1899]1 Ch.438

Perpetual Injunction:

A Perpetual injunction can be granted for the lifetime of the Plaintiff.  The Perpetual Injunction is so called because it is granted at the final determination of the rights of the parties.  It is not called perpetual because it will operate forever, perpetual relates to the fact that the court will finally settle the dispute between the parties.  A perpetual injunction is granted only after the claimant has established his right and the actual or threatened infringement of it by the defendant.

Interlocutory Injunction

It is also called temporary it has cousins one of which is Interim and the Ex-parte.
An interlocutory injunction is granted before the hearing of the main suit or before the determination of the main suit.  Its purpose is to maintain the status quo until the matter is finally determined.  It is quite common in relation to land matters.  An interlocutory (or interim) injunction is granted before the trial of an action; its object is to keep matters in status quo until the question at issue between the parties can be determined.  Accordingly, the claimant may obtain it without making out a case which will necessarily entitle him to a perpetual injunction.

When the plaintiff is serving the main suit, he will also serve the defendant telling him that by the time the matter comes up for hearing, he will be making an application for an interlocutory injunction.

The decision that the court makes on that motion day i.e. when it decides on the interlocutory motion, it will not be based on the merit of the case but it is left for the main hearing of the main suit.

Ex parte Injunction is granted without hearing the other party.  It will only last until the next motion day.

An interim injunction on the other hand restrains the defendant until some specified date.  After the ex parte injunction is lifted on the motion day, a plaintiff may apply for an interim injunction to last until a specified date and usually it does not last more than 14 days.  This usually gives the defendant time to go and prepare the case.

Quia Timet

This type of injunction is granted to prevent a threatened infringement of the Plaintiff’s rights.  There are signs that infringement will occur but the rights have not been infringed yet.  One applies for an anticipatory injunction (Quia Timet) in anticipation that some certain right is about to be infringed.  This also occurs where the claimant has been fully recompensed for the damage already suffered but alleges that there is a risk that further damage may occur, as where the defendant has carried on operations on his land which imperil the stability of his neighbour’s land.
For the court to grant the anticipatory injunction, the following conditions must be established.

1.            The plaintiff must show a very strong probability of a future infringement.
2.            The Plaintiff must show that the danger is imminent and
3.            the Plaintiff must show that it will cause substantial or irreparable damage and that an award of damages will not be a sufficient or adequate remedy.
4.            The Plaintiff must show that the damage will be of a most serious nature.

As far as the injunctions are concerned, you can have more than one injunction

Can a Prohibitory Injunction be perpetual?  Yes it can
Can a Prohibitory injunction be interlocutory?  Yes it can
Can a Mandatory Injunction be perpetual?  Yes it can – when the defendant is ordered to demolish buildings, he is not expected to go back and build them so the Mandatory Injunction can be perpetual.

Can Mandatory be interlocutory?  Yes it can but rarely.
Can an exparte injunction be Prohibitory – Yes it can.
Can an exparte injunction be interim?  Yes to the extent that it lasts until a specified date.
Exparte can be mandatory but rarely.
Interim can be mandatory – Yes it can, an interim can also be Prohibitory

 
 
 

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