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Interim Remedies Notes

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Final Exam Notes: Principles of Civil
Procedure
(1) Interim Remedies
KEY QUESTIONS
What role does/should a merits assessment have to play in the granting of an injunction?
When are damages an "inadequate" remedy/when is there a risk of irreparable harm?
What is the Court trying to achieve with interim relief?
Is there any way to introduce precision into the quantification/comparison issue?
How do the principles of equality of arms and access to justice interface with the principles governing the grant of injunctions?
What role does the cross-undertaking play?
What factors are relevant to the balance of convenience?
What principles apply to FOs and SOs? What other factors are relevant?

PROVISIONS
CPR

25 (1) The court may grant (a) an interim injunction; or (f) a 'freezing injunction' —
- (i) restraining a party from removing from the jurisdiction assets located there; or
- (ii) restraining a party from dealing with any assets whether located within the jurisdiction or not

Senior Courts Act 1981
Civil Jurisdiction and
Judgments Act 1982

Section 37

(1) The High Court may by order grant an injunction ... in all cases in which it appears to the court to be just and convenient to do so.

Section 25

(1) The High Court shall have power to grant interim relief where— (a) proceedings have been or are to be commenced in a Brussels
Contracting State or a State bound by the Lugano Convention other than the United Kingdom …

1 INTERIM INJUNCTIONS — GENERAL NOTES (Zuckerman)
Interim Remedies — Protective versus Process Orders — CPR 25.1: extensive list of interim orders  broadly contains two types of interim orders:
- (1) Protective Orders: designed to protect substantive rights (usually rights in issue in the case) during proceedings
- (2) Process Orders: designed to facilitate access to information/regulate the litigation process in some way
- NOTE: Distinction of "profound importance"
o Protective order involves "pre-judgment interference with substantive rights" — ie. injunction could prevent party from doing what was otherwise lawful right to do, and could inflict irreparable harm

Cf. Process order involves no such risk — only concerned with conduct of proceedings

 Thus: Factors considered when exercising jurisdiction to make protective orders are fundamentally different from considerations in process orders o
Jurisdiction to grant II relief based on three fundamental principles:
- (1) Available only for protecting recognisable rights (ie. no II where no likelihood of harm to legal/equitable right belonging to applicant and enforceable by final judgment)
- (2) Principle of provisionality: function of the jurisdiction is not to decide finally issues in dispute — only to protect rights from irreparable harm pending litigation
- (3) Principle of restorative compensation: if court finds that party restrained by II prevented from exercising rights, may seek to restore party to pre-II position
The dilemma: II is the "most flexible and far-reaching measure that the courts have at disposal"
- Court's powers as wide in reach as extensive in consequences — without hearing on merits, Court may restrain almost any conduct/order almost any action regardless of whether such an order would be available at final judgment

 Then: Tension between conflicting imperatives: (i) Due process and (ii) need to safeguard rights from harm pending litigation
 Due process: Should not interfere freedom of action except by due process — entitles Respondent to insist that Applicant first prove entitlement to restraint
 HOWEVER: During time it takes to comply with due process requirements, rights in dispute may be harmed to point of extinction
  "Inescapable dilemma": Should Court adhere to due process, which requires rights to be proved before enforced, or should act in the absence of proof?
 Inevitable risk of harming rights (either claimant or defendant)
-  THUS: Approach to the dilemma: Governing principle in relation to wide discretion: Court must strive to reduce risk of irreparable harm to rights
Principles governing grant of II
- No universal principle capable of producing satisfactory solution in all situations: acknowledge inevitable possibility that both grant and refusal could result in undue harm

 Thus: only thing to be done is to minimise possible harmful consequences
  Then: Method adopted in English law: balance of justice
The BASIC TEST: Balance of Justice
- Function of II jurisdiction = to safeguard rights from irreparable harm pending litigation

Factortame Ltd (No 2): Noting that injustice may be done either way — objective underlying principles by which discretion is to be guided always to ensure that

2 the court chooses course which offers best prospect that eventual injustice will be avoided or minimised."
o American Cyanamid: To minimise prospect of injustice: (a) Plaintiff need for protection weighed against (b) Defendant need for protection
 Balance of justice hinges on two factors:
o (1) Likelihood of harm occurring; and (2) Magnitude of possible harm.
o  Applicant must satisfy court that:
 (i) He would be able to establish a right at trial (chances of success on merits); and
 (ii) Unless Court assists, his right is likely to suffer irreparable harm in the interim.
o  Court must assess: chances of establishing alleged right + probability that right will suffer irreparable harm + magnitude of such harm — from perspective of both Plaintiff and Defendant — strike a just balance between the competing claims

(1) Likelihood of harm occurring (ie. relative chances of success — merits)
- SEE American Cyanamid; HOWEVER: Weakness— expansive exceptions that undermine justification  "discrete but consistent erosion" of ban on merits

That merits are relevant considerations now "beyond doubt" — PC interpretation of American Cyanamid in National Commercial Bank Jamaica:
(2) The requirement of irreparable harm
- Court justified in granting II only if it is necessary to avoid irreparable harm

Lord Diplock in American Cyanamid: First consider whether, if Plaintiff were to succeed at trial, she would be adequately compensated by damages
  If damages recoverable adequate remedy and Defendant in financial position to pay, no II should normally be granted

BUT: Meaning of "irreparable harm" unclear: "so elastic as to place little constraint on the court's discretion"3

 Different types of harms that may be considered irreparable:
o (a) Irreparability due to uncertainty of quantification
 Risk that harm impossible to calculate and thus impossible to award damages (ie. impossibility of accurately gauging extent of harm)
 Distinguish between two types of uncertainty:
 (i) Possible to place fairly robust certainty on chance or prediction then verify
 (ii) Uncertainty is permanent and not removed by future event (inherent uncertainty — unknowable)
o Eg. development of shopping centre delayed by II for three-years — impossible to estimate long-term economic consequences)
o  Where Court cannot assess risk of irreparable harm due to unknowable nature, only course is to assess merits of claims

(b) Irreparability for lack of adequate remedy
 (i) Law provides no remedy for the harm
 Eg. no compensation in law to person wrongly denied opportunity to vote
 Unless Court acts in time to protect right, would disappear without a trace  court decision on II effectively disposes of whole dispute

Since Court effectively giving final decision on merits, question of irreparability as a test of II has little significance
 (ii) Compensation for harm possible but inadequate
 Damages inadequate when it is unjust to expose party to risk of losing right and having right converted into right to damages

Common where right in question not normally valued just for economic worth (example: right to free expression)
 Eg: Defamation — (a) risk that person may unjustly be defamed and (b) risk to right to free expression — (b) is more important

No II unless Applicant can show that she would win on the merits — otherwise, Court will not risk freedom of expression 

o

o

More difficult situation — Cream Holdings

Conflict between (a) right to privacy and family life and (b) freedom of expression

RESPONSE:
 (i) No ECHR right has priority over another ECHR right
 (ii) In conflict, must bear in mind importance of free speech and protect unless strong countervailing considerations
 In effect: all else being equal, protect freedom of expression

However: All else is not equal if serious risk to life, family/child welfare, or applicant is vulnerable
Problem of comparison: Economic vs value judgment: Balance of justice requires that expected loss be compared —common denominator not always possible
 Difficulties where losses of different kinds or interest incommensurable
 US: purely economic approach dominant (price tag on competing interests)
 HOWEVER: "Debilitating defect" — absence of objective criterion for translating non-economic loss into money terms

eg: How to quantity: unknowable consequences of delayed commercial development; being separated from one's child?
 Suggestion: Rather than "are damages an adequate remedy": Is it just, in all the circumstances, that the plaintiff should be confined to remedy in damages?"

EXAM HINT: Indeterminacy of Court in terms of exercising discretion — Is this a good or a bad thing?
Application for II to Restrain Publication — part. acute problem because conflict between: freedom of expression (Article 10) conflict with privacy/reputation (Article 8)
- Effect of the HRA: Court required to consider ECHR rights when exercising discretion— involves balancing exercise:
o Cream Holdings threshold test: When conducting balancing exercise:
 (a) General approach: exceedingly slow to make II where applicant has not satisfied court he will probably ('more likely than not') succeed at trial
 (b) HOWEVER: Cases where necessary for Court to depart from general approach and lesser degree of likelihood will suffice
 Eg: potential adverse consequences of disclosure particularly grave, or short-lived II needed to enable court to consider II application

Note: While Cream Holdings does not provide hierarchy of Article 8 or 10, recent decisions on super-injunctions suggest increasing protection for privacySuper Injunctions restrains a person from:
o (i) publishing information which concerns applicant and said to be confidential or private; and

(ii) informing others of existence of the order and proceedings ('super' element)
o Threat to open justice: In extreme form, where identity of parties, terms of order and existence of proceedings remains forever concealed, threat to open justice and democratic system — negate the principle of judicial accountability
 Danger of clothing legal process in permanent secrecy judicially acknowledged and largely averted  cautious approach to super-injunctions
 Ntuli v Donald: Principle of open justice requires that restrictions are the least possible consistent with protection

NOTE: Following Neuberger Report and Ntuli, "near impossible" to imagine a situation where Court would make order which forbids publication and permanently prohibits disclosure of existence of proceedings — instead, anonymise proceedings or redact order
 No presumption in favour of anonymity: consider extent to which necessary to qualify freedom of expression in order to protect underlying value of privacyGuidelines restraining publication that violates right to privacy (JIH v Newsgroups Newspapers Ltd):
o (1) General rule that names of parties are included in orders / judgments

4 o

o(2) No general exception for cases where private matters are in issue.
(3) Order for anonymity is a derogation from principle of open justice and interference with article 10 rights
 Thus: Court should only do so after close scrutiny, considering whether restraint necessary, and, if it is, whether there is any less restrictive alternative
 Crucial importance that Court be satisfied of sufficient strong reasons to justify encroaching on principle of open justice — ought to be sufficiently satisfied on the merits per Cream Holdings threshold
(4) Where Court is asked to restrain publication of party names and/or subject matter, need sufficient public interest to justify curtailment of Article 8 rights
 No special treatment should be accorded to public figures/celebrities

The rule in Bonnard v Perryman — See Greene case notes below

Common law rule (still in force): person cannot obtain II to restrain publication of allegedly defamatory material (thereby interfere with another's freedom of speech) unless he could persuade court that publication was defamatory (ie. bound to succeed at trial)

Undertaking as to Damages
- Condition for obtaining II — Applicant to give undertaking to Court to pay any damages which Respondent sustains (25A PD 5.1(1))
o The quid pro quo for obtaining II (safeguard respondent in event that injunction harms rights) — dictated by considerations of fairness and equal treatment
- Court has jurisdiction to include non-parties in an undertaking (25A PD 5.1A)
o Undertaking that must be given to non-parties: where Claimant applies for FO, must undertake to pay reasonable costs of non-party who has incurred expense in assisting with enforcement
- Undertaking must afford real protection (ie. be of real economic value)
o HOWEVER: Applicant who cannot offer valuable undertaking not excluded from possibility of interim remedy — rather, inability consideration in balance of justice
(Allen and Jumbo Holdings)
Dispensing with undertaking in damages in law enforcement proceedings:
- General principle: Public bodies seeking II in aid of law enforcement proceedings not required to provide undertaking in damages

HOWEVER:
 not entitled to dispensation in proceedings for enforcement of private law rights
 Court has discretion to require undertaking
- Rationale: Financial Services Authority v Sinaloa Gold PLC :
o (i) Chilling effect / obstacle to law enforcement: if public authorities required to provide undertaking, reluctant to proceed with law enforcement
 Problems:
 Should not all parties with limited means be afforded same protection? Applicant's impecuniosity does not provide ground for dispensing
 Why should risk involved in law enforcement fall entirely on the respondent?
o Public authority cannot escape backing legal actions with public funds and cannot always avoid using public funds

(ii) Fundamental distinction between private and public litigation: Claimant acting in own interests (choice to commit assets/energies to do so) versus public authority seeking to enforce the law interests of the public generally (often in pursuance of public duty)

5 INTERIM INJUNCTIONS — COMMENTARY
Lichtman 2003

NOTING that:
- In deciding whether to issue II, Courts focus on three factors: (i) likelihood Plaintiff will win on the merits, (ii) harm Defendant will suffer if II wrongly issued and (iii) harm Plaintiff will suffer if II wrongly denied

Standard approach weighs both probability of a mistake and its magnitude, tipping scales:
 In favour of injunction where wrongful denial would be particularly harmful
 Against injunction where wrongful issuance poses the greater threat
- Purpose of this is to account for the possibility that the Court might err in its prediction on the merits
(1) Approach only works if the Court has good information about relative harms HOWEVER this is unlikely:
- (a) Preliminary hearings before all evidence studied/made available; and
- (b) Harms that qualify for preliminary relief are often harms that Courts cannot reliably estimate no matter what available evidence.
-  In most cases, Court will be just as uncertain about estimates of harms as about predications as to merits
(2) Standard approach only accounts for one type of uncertainty (ie. uncertainty as to proper outcome on merits), not magnitude of the harms
- Court cannot minimise the implications of possible error on the merits by blindly relying on possibly error on estimates of relative harm
(3) Optimal decision rule must account for both types of uncertainty

Brooks and
Schwartz (2005)

(1) Goal of II should be to promote efficient conduct during litigation (by removing incentives of parties to act inefficiently)
(2) Thus— proposal of a "liability rule": where there is any uncertain as to correct final outcome, II should be granted to all plaintiffs who post a bond covering defendant's damages provided that plaintiff has some claim on the merits (ie. Leubsdorf: merits of plaintiff's case scarcely considered, and court would not consider whether injury to either party would be irreparable)
- Suggestion that, because plaintiff will have to bear the defendant's costs should defendant prevail, rule will induce plaintiff to seek II when (and only when) the plaintiff's gain from the relief exceeds the costs it imposes on the defendant

Leubsdorf 2007

Preliminary Injunctions: A Defence of the Merits
Argument: Courts should continue to consider merits of plaintiff's claim and irreparable injury to parties' rights that an erroneous grant or denial of II would inflict
(1) Goal of interim injunctions is to minimise irreparable injury to legal rights in situations in which court cannot know who will win on the merits
(2) Court seeks that goal by assessing the probable irreparable loss of rights an injunction would cause by:
- [Probability that defendant will prevail] X [Amount of irreparable loss of rights to plaintiff from denying injunction]
Lichtman: Leubsdorf test has intuitive appeal HOWEVER overlooks fact that Court likely to be just as uncertain about estimate of harm and the merits

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