Widgets

PERPETUAL INJUNCTIONS


General Rules

The very first principle of injunction law is that prima facie you do not obtain injunctions to restrain actionable wrongs for which damages are the proper remedy.  Thus no injunction will be granted where an illegal act has been done in the past but there is no intention of repeating it, or where the injury can be adequately compensated by money.  But an injunction may be granted if an award of damages would be useless e.g because the defendant is a pauper, and many wrongs such as continuing nuisances or infringements of trade marks, demand more adequate relief than money.  Moreover, a party to a contract has a right to its performance and not merely to compensation for breach and hence an injunction will be granted to restrain breaches of negative contracts, if, however, the parties have specified a sum as liquidated damages for breach of a negative contract, the claimant cannot recover both the sum and claim an injunction.

1.            The Plaintiff must establish a right. If the party who seeks it has a cause of action which includes statutory as well as private rights of action justifiable before the court.  This general rule cuts across the board that is in relation to other branches of law.  This right can be a legal right or it can be an equitable right, if it is for mere convenience, the law does not recognise that. 

In the case of Day v. Brownrigg (1878) 10 Ch. D 294.  The Plaintiff lived in a House that he called Ashford Lodge.  The Defendant lived in a smaller house that was called Ashford Villa.  The Defendant changed the name of his residence and changed the name of his villa and called it Ashford Lodge.  The Plaintiff was unhappy about this and he sued for an injunction to prohibit the Defendant from calling his house Ashford Lodge.  The parties had lived next door to each other for a long time and the Plaintiff had used the name Ashford Lodge for 60 years.  The court held that there is no legal or equitable right to the exclusive use of the name of a private residence.  The court refused to grant the injunction.

2.   Discretion:    A party who establishes his right and its violation will be entitled to an injunction.    Although the court has a discretion whether to grant or withhold an injunction, an order to restrain the breach of a negative contract may be obtained almost as of right.  The court exercises discretion according to well settled principles in granting injunctions.  In Doherty v. Allman  the court refused an injunction to restrain ameliorating waste by a tenant under a lease with over nine hundred years left to run; Lord Cairns L.C. said: “if parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction the process of the Court to which already is the contract between the parties.  It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury—it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open between themselves.”  Thus a purchaser who covenants not to carry on any trade, business or calling in the premises can be restrained by the vendor from opening a school there, even though the vendor would sustain no damage.

(i)            Nominal Damage – the fact that the Plaintiff has suffered nominal damage does not mean that he should be refused a remedy.  If the court decides that you have suffered nominal damages, the court will exercise its discretion to grant an injunction. Indeed, that the damage is trifling may be ‘the very reason why an injunction should be granted.’ 

Behrens v. Richards

In this case, the Plaintiff had sought to restrain members of the public from using tracks on the claimant’s land situate on an unfrequented part of the coast, which use caused no damage.  The court refused to grant an injunction.

(ii)          Compliance: Where a party claims that compliance will be difficult or impossible, the plaintiff has established a violation of his right or has established damage but the defendant says that compliance is difficult or impossible.  For instance if you are talking of a situation where the defendant has wrongfully cut down the trees, it will not be effective for the court to allow an injunction not to allow the trees to remain lying on the ground (equity does not act in vain) compliance is impossible.  Remedy will be suffered better by damages.  Attorney General v. Colney Hatch Lunatic Asylum [1868] 4 Ch. 146, 154.

(iii)         Annoyance may have ceased:  If the annoyance has ceased before the trial or if it is just temporary and not intended that it ought to be repeated, the court can exercise discretion and refuse to grant the injunction.  Barber v. Penley and Wilcox v. steel   

(iv)         The defendant can give an undertaking:  the defendant will give an undertaking to the court to abstain from the acts that are complained of by the Plaintiff.  This undertaking is equivalent to an injunction and if the defendant breaches the undertaking it is taken in the same way as a breach of a proper injunction or as contempt of court.

(v)          Order unnecessary: An injunction may also be refused where the claimant has a remedy available in his own hands, e.g. by refusing to supply goods to defendants who are dealing with them in breach of contract.

3.         Inadequacy of Damages: The courts have held that in certain circumstances damages will be inadequate and therefore the only remedy to grant is the Perpetual Injunction. 
(i)   Continuing Nuisance  the nature of a continuing nuisance is that this annoyance will never cease.  There is no way of stopping it.  Martin v. Nutkin earliest reported case in perpetual injunctions.   This is a case where the Plaintiffs were annoyed by the daily ringing of a church bell at 5 in the morning.  The Parson of the church, the church wardens and others on behalf of the parish agreed to stop the ringing of that bell.  They entered into an agreement with the Plaintiffs not to ring that bell during the lives of the Plaintiffs, as long as the Plaintiffs provided the church with a new clock and bell.  The Church rang that bell in breach of the agreement and the Plaintiffs went to court seeking a perpetual injunction.  The court granted a perpetual injunction because this was a continuing nuisance.  Note this injunction is called perpetual but does not last forever, it last for the lifetimes of the Plaintiffs.  Secondly the injunction was supposed to settle that dispute once and for all.

(ii)          Infringement of Trademarks the case of Licensed Victuallers’ Newspaper Co. v. Bingham (1888) 38 Ch.D 139 and the case of Borthwick v. The Evening Post (1888) 37 Ch.D 449

4.            Conduct of the Plaintiff:  if the plaintiff is guilty of delay, he will not get a perpetual injunction, if he has come to court with unclean hands, if he is guilty of acquiescence he will not get the remedy of injunction because his conduct is wanting.  Sayers v. Collier an injunction to restrain the use of a house as a shop was refused by the court.  The court said that the same Plaintiff had bought goods from that shop and now he wanted the shop restrained.  He had acquiesced and his own conduct bound him.  He who comes into equity must come with clean hands.

5.            Locus Standi & Public Rights:  The Attorney General can obtain orders for the protection of public rights. To what extent can the attorney general obtain an injunction to restrain criminal acts?  Attorney General v. Chaudhry  this is a case where a hotel was operating without a fire certificate and therefore posing a danger to the public.  The Attorney General applied for an injunction against that hotel and it was granted.  In the case of Attorney General v. Sharp an injunction was granted against an omnibus proprietor who had been refused a licence to operate.  The operator preferred to pay the fines and continue operating.  The profits he was making daily were greater than the fines so the only way that the Attorney General could stop him was by means of a prohibitory injunction.  In AG v. Harris there were two flower sellers who used to sell flowers illegally from stalls.  They would be arrested, fined and they would be out and this continued.  The Attorney General got tired and by the time he sought a Prohibitory injunction the defendants had 237 convictions between them and the only way to stop them was by means of a Prohibitory Injunction. 

The attorney general is the protector of public rights, can an individual seek an injunction for violation of a public right created by statute?

There are 3 conditions that must be met

1.            The individual must show that the infringement of the public right has infringed some private right;
2.            The individual must also show that the infringement has inflicted special damage on him or her;
3.            The individual must show that he or she is a member of a class for whose benefit the statute was passed. 

The individual can obtain redress for infringement of a public right if they meet the 3 conditions.

Lonrho v. Shell Petroleum Ltd. (1982) A.C. 1973 

Public rights are normally asserted by the Attorney General, as representing the public.  A private person is entitled to sue in respect of interference with a public right if there is also interference with a private right of his, which case, however, does not depend on the existence of a public right in addition to the private.  Lord Diplock in the above case said that there were two classes of exception to the general rule.  The first is where on the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, as in the case of Factories Acts and similar legislation.  The second is where the statute creates a public right (ie right to be enjoyed by all of those who wish to avail themselves of it) and a particular member of the public suffers particular, direct and substantial damage other and different from that which was common to all the rest of the public.  A mere prohibition on members of the public generally from doing what it would otherwise be lawful for them to do is not enough.

Gouriet v. Union of Post Office Workers (1978) A.C. 435

The environmental act has opened up the opportunity even for members of the public where there is environmental damage.  The rule of locus standi has been relaxed

 
 
 

Like Us on Facebook

Contact Form

Name

Email *

Message *