Civil Litigation SGS 9 Interim Injuctions

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billsykes
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204290
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Civil Litigation SGS 9 Interim Injuctions
Updated:
2013-03-10 17:45:37
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Civil Litigation
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Civil Litigation
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  1. John has this morning been unlawfully evicted from his house by his landlord. John is unemployed and qualifies for community legal funding.He has nowhere else to live and wants an injunction ordering the landlord to let him back into the house tonight. He wishes to know the correct procedure for obtaining such an injunction.

    Which ONE of the following would be CORRECT advice?

    [A]  He cannot obtain an injunction today. He must first issue and serve a claim form and then serve an application notice and evidence in support not less than 3 days before the court hearing.

    [B]  He does not have to issue and serve a claim form, but he must issue and serve an application notice, giving his landlord 2 hours notice of the hearing.

    [C]  He can simply go to court today with a draft order and evidence in support, though he should endeavour to file an application notice,evidence and draft order with the court 2 hours before the hearing.

    [D]  He can simply go to court today with a draft order and evidence in support though he must file an application notice, evidence and draft order with the court 2 hours before the hearing and fax the same to his landlord.
    [C]  He can simply go to court today with a draft order and evidence in support, though he should endeavour to file an application notice,evidence and draft order with the court 2 hours before the hearing.

    [[C]is CORRECT. See Practice Direction 25A paragraphs 4.3(1), 2.4 and3.2 and paragraph 4.4(1) for general information]
  2. Which ONE of the following undertakings would it be CORRECT to consider is most likely to be dispensed with by the court in John’s case?

    [A]  The undertaking in damages.

    [B] The undertaking to issue and serve the claim form.

    [C] The undertaking to serve and file the application notice and evidence in support.

    [D] The undertaking to serve the order as soon as practicable.
    [A]  The undertaking in damages.

    [[A] is CORRECT. Allen v Jambo Holding Limited (1980) 1 WLR 1252 established the principle that the court will not deny a legally aided claimant an interim injunction to which he would otherwise be entitled simply on the ground that this undertaking in damages would be of limited value, since questions of financial stability ought not to affect the position with regard to the essential justice of the case. See Sime 15th edition at paragraphs 35.41 to 35.44 inclusive].
  3. Assume that John obtains the injunction.

    Which ONE of the following would it be WRONG to consider to be a ground for discharge of the injunction?

    [A]  That John has failed to issue a claim form after obtaining the injunction.

    [B]  That compliance with the injunction will cause hardship to the landlord because he relet the house to a friend (who was aware of the unlawful eviction) on the same day as the eviction took place.

    [C]  That John has failed to file and serve the application notice and evidence in support after obtaining the injunction.

    [D]  That John’s evidence in support of the application did not disclose to the court that the parties were in dispute over whether John only had a personal licence to stay in the house, as opposed to a lease.
    [B]  That compliance with the injunction will cause hardship to the landlord because he relet the house to a friend (who was aware of the unlawful eviction) on the same day as the eviction took place.

    [[B] is CORRECT. John has been unlawfully evicted from his house by his landlord and therefore this would not be a just outcome. Accordingly, this scenario is not a ground for discharge of the injunction]

    [Grounds for applying to discharge an injunction include where the claimant has failed to comply with the undertakings incorporated in the order. Unless the court orders otherwise, John must undertake to issue a claim form after obtaining the injunction or the court will give directions for the commencement of the claim. See Practice Direction 25A paragraph 4.4(1). Also, see Sime 15th edition at paragraph 35.95 and the discussion regarding applications to vary or discharge injunctions]
  4. Which ONE of the following would be WRONG to consider as a factor taken into consideration under the American Cyanamid guidelines?

    [A]  Whether the claim has a serious question to be tried.

    [B]  Whether the applicant has already commenced proceedings for a perpetual injunction.

    [C]  Whether the defendant is likely to be able to pay any damages.

    [D]  Whether the defendant is adequately protected by the claimant’s undertaking in damages.
    [B]  Whether the applicant has already commenced proceedings for a perpetual injunction.

    [[B] is WRONG, and is therefore the CORRECT answer.This is not a factor taken into consideration under the American Cyanamid guidelines. See Sime 15th edition at 35.32 - 35.54]
  5. In which ONE of the following cases would it be CORRECT to consider a court is more likely to adopt a strict American Cyanamid approach?

    [A] The government seeks an interim injunction to prevent a television programme being shown this week. This application is likely to dispose of the matter, because the matter will no longer be in issue at the date of any trial.

    [B] Ian seeks an interim injunction against Public Eyes to stop them printing analleged libel. Public Eyes intends to raise a defence of justification.

    [C] John seeks an interim injunction against his landlord. The landlord hasno arguable defence.

    [D] A shop-owner seeks an interim injunction against his landlord, a commercial developer, to prevent building works by the landlord which the shop-owner claims are disrupting his trade.
    [D] A shop-owner seeks an interim injunction against his landlord, a commercial developer, to prevent building works by the landlord which the shop-owner claims are disrupting his trade.

    Note: [A]:final disposal of the claim, [B]: defamation claim, and [C]:no arguable defence are all exceptional cases to a strict American Cyanamid approach

    [[D] is CORRECT. This would be an application to restrain (i.e. “prevent”) the commercial developer from doing acts (i.e. “building works”) in violation of the shop owner’s legal rights (i.e. “disrupting his trade”). In these circumstances, it is likely that the court would adopt a strict American Cyanamid approach. See American Cyanamid Co v Ethicon Limited (1975) A.C. 396. The court would also comply withthe fundamental principles in Section 37 (1) Senior Courts Act 1981– see Volume 2 of White Book 2012 at 9A-128]
  6. What is the application procedure for interim remedy?
    Application notice + fee

    Evidence (norm statements of case)

    Draft order

    [and Statement of costs]

    + Skeleton!
  7. What is the test for an Interim Injunction?
    1. Must be just and convenient

    AND

    2. American Cyanamid Co principles
  8. What are the 'American Cyanamid' limbs?
    (1) Is there a serious question to be tried?  

    (2) Would damages be an adequate remedy for the applicant? (wrong is irreparable or non-pecuniary)

    (3) Undertaking of applicant to repay defendant if wrong granted

    (4) If not, where does the “balance of convenience” lie?

    (5) The court will consider the merits of the case
  9. What is an injunction and what types are there?
    PROHIBITORY INJUNCTION: Court order prohibiting someone from doing something.

    MANDATORY INJUNCTION: Court order ordering someone to do something.
  10. What is an interim injunction and when can you apply for one?
    An interim injunction is a temporary order. Useful where there is evidence that the respondent's alleged wrong doings will case irreparable damage

    • Can be made ANY TIME!
    • Before proceedings have started or even after judgement has been given.
  11. Name a few types of cases where the American Cyanamid principles are not applicable:
    • Mandatory injunctions
    • Defamation claims
    • Restraint of trade
    • Where there is no defence
    • Privacy and confidentiality (ECHR 8 v 10)
    • Super injunctions
    • Industrial disputes
    • Defendant has no defence (just apply for summary judgment)
  12. What is the effect of non-compliance with an interim injunction?
    Contempt of court punishable by imprisonment.

    Must be proved beyond reasonable doubt that there has been non-compliance.
  13. What does 'on notice' mean?
    The other side is told about the application and they have the opportunity to argue against the order being made.

    There is a general rule that notice must be given to the other side. Notice may be dispensed with in URGENT cases. There must be a good reason.
  14. If you are on the small claims track can you still apply for an interim injunction?
    YES!
  15. What sort of judges can grant an interim injunction?
    Interim injunctions are quite serious so they need to be made by a judge rather than a recorder or district court judge.
  16. Name some defences to an application to an interim injunction:
    Acquiescence

    Delay/laches

    Hardship (taken into account on balance of convenience)

    Equity will not act in vain - II to restrict breach of confidence where it has already been widely publicised

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