1_Equitable remedies

1_Equitable remedies

1. Injunctions

2. What role did you play?

   • The injunction is a equitable remedy. It is at the discretion of the court to make an order to either party to litigation, or by way of the final judgement, to take some action or to refrain from some action.
     • An injunction to restrain someone from doing something or constrain them into doing something

3. Where to get one?

   • Court orders–originally equitable orders could only be sought in the chancellors court now they are available through the modern country court or the High Court depending on the value of the case
     • This is a discretionary remedy
     • There is no absolute entitlement

4. Interlocutory -one company against another– Injunction to stop person from prejudicing the case

5. What are the courts looking for?

   • to understand that the court are looking forward to make an order such as an injunction we look at the case of South Carolina where it was established–where P can show that D has invaded or threatened to invade his equitable or legal rights or threatened or be healed in unconscionable manner

6. Key elements: no common law remedy is appropriate– The applicant must come to Equity with clean hands–no Delay must be present as delay can defeat equity–the applicant rights must be affected–the respondent will not suffer undue harm as a result of the issuing of the injunction

   • Institute example– Interlocutory–hi Sabine belt, 15 years later golf course with tee off beside the garden, Golf balls in garden, the golf ball smashes fish tank, an upcoming competition, what Harm will be caused by using an injunction

7. day v Brownrigg - plaintiff and defendant lives Next-door to each other.

   • Plaintiffs house was called Ash Ford Lodge– Defendant wanted to call his House By the name–plaintiff try to prevent him by way of injunction– Court did not granted the injunction

8. paton v trustees of British pregnancy advisory service– Husband signed junction against his wife to stop having an abortion– The court would not grand– no legal right to protect– the plaintiff needs to be able to present a clear right in need of protection. And injunction is granted when it appears to the court to be just and convenient to do so. Not to be decided in an arbitrary way, The court will decide according to settled principles. The injunction is a remedy in personam(Available against the defendant personally) if D does not comply– is in contempt of court.

9. Types

   • Prohibitory– To order somebody to refrain from doing something
   • Mandatory– orders the defendant carryout a positive act
   • A court will not order the defendant to do something that is impossible, unlawful, unenforceable.

10. Potentially perpetual nature

    • This may last forever or a specified period of time decided by the court

11. Interlocutory–Heard before the substantive action. It will be enforced pending trial or a further order

    • Sometimes they can dispose of the whole case
      • Courts tended grant if plaintiff likely to succeed at the full trial or where there is imminent danger of action occurring cannot become considered for
        • Usually heard notice(Given to the respondent) that it's urgent can be granted ex parte(Only with the applicants present)

12. quia timet - threatened breach of plaintiffs rights and there must be strong possibility that the apprehended mistress will arise

    • Torquay Hotel Corporation–defendants were members of the trade union picking the plaintiffs hotel– Seeking to prevent delivery of oil– Injunction granted against them– For the trade union to stop picketing

13. Damages in lieu - can you awarded instead of an injunction

    • shelfer v City of London Electric and reaffirmed in Jaggard v sawyer
      • Damages may be awarded instead where: Injury to the plaintiff legal rights was minor, Can be estimated in monetary terms, can be adequately compensated by a small payment, would be impressive to D to grant an injunction

14. Measurement of damages

    • wrotham park estate v Park Side Holmes– houses were built on ps land in breach of restrictive covenant – Court refused injunction but awarded damages– Value of land is not diminished a large damages awarded–assessed by looking at sum p would have been able to ask for, for releasing the covenant
    • Johnson v Agnew– Damages will be assessed as at the time of breach
      • American cyanamide case - the key principles involved in the application for an injunction was covered in the American cynamide case
        • Judge has discretion with which the appeal Court is reluctant to intervene and only if discretion is exercised wrongly or change of circumstances e.g. new evidence.
          • Guidelines not rules– The quarter way balance of need between parties and see where balance of convenience lies–guidelines are as follows 1. Is there a serious question to be decided? 2. Wit damages be adequate? 3 should injunction be granted taking into account balance of convenience? 4 any other special factor to be taken into consideration?

15. When might Courts grant an injunction?

    • To enforce intellectual property rights such as copyright and patent
      • To restrain breach of contract
        • To restrain a breach of confidence