Interim Remedies - Principles of Civil Procedure

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 the court chooses course which offers best prospect that eventual injustice will be avoided or minimised.”

  • 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:

  • (1) Likelihood of harm occurring; and (2) Magnitude of possible harm.

  • 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.

  • 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

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