BCL Law Notes Principles of Civil Procedure Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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Interim Remedies – Interim Injunctions
General rule – no security for judgment in UK law
BUT
Interim injunctions –
Freezing injunctions –
Interim injunctions
Interim/preliminary/interlocutory injunction – order that the parties do or refrain from doing something to maintain the rights of the parties pending proceedings
Fundamental features
Sought to protect existing right
Temporary not final
Mechanism for enforcement – contempt
Tension – due process v protection of rights
Order sought before hearing
Process rights v substantive rights – if court insists on due process, no meaningful protection for substantive rights
Resolution of tension – test
Maintain status quo – says nothing about correct balance between C&D’s rights
Eg injunction in relation to strike – whether strike has commenced or not arbitrarily determines nature of status quo
Balance of convenience – Whether one right can be adequately compensated or is threatened by irreparable damage – quantification of damage to rights
If granted, would require undertakings as to harm if substantive action fails/is abandoned
Damage is irreparable also if D wouldn’t have capacity to pay damages
Where two non-monetary harms – difficult to quantify & compare – need normative comparator
Defamation cases – ECtHR says arts 8&10 (privacy & freedom of expression) of equal weight
BUT even within 8&10 context, harm on each side may differ according to the context: Cream Holdings
Even where monetary damage – difficult to quantify magnitude of consequential harm
Public interests outweigh private rights unless high prospects of success – Green v Associated Newspapers (defamation action)
BUT where harm to C is very high, then no such requirement
Public interest doesn't belong to the parties – does it include climate change, other environmental concerns?
Prospects of success
BUT don’t have all the evidence available
Prospects of success x magnitude of harm = measure most likely to reduce harm to rights
BUT mathematical exercise ignores that
Can’t properly ascertain probability of success
Can’t quantify harm if it is irreparable and can’t be adequately addressed by compensation
Role for overriding objection
American Cyanamid v Ethicon [1975] AC 396 (C made synthetic stitches – C sought to restrain D from patent infringement – potential harm to market share – difficult to compensate as difficult to reverse set down test with regard to merits, but has since been watered down by exceptions)
Q – person who lives in building where Charlie Hebdo produced concerned about potential attacks – threat to life contrary to Art 1 – protection of family life under art 8 so can’t be forced to move – seek injunction for personal safety
Undertakings for damages
Undertaking to the Court to abide by any order to compensate for damages suffered as a consequence of the injunction
3Ps who have incurred damages as a result of the injunction can’t piggyback on undertaking
EG sub-vendors of patented material subject to injunction
Rationale
Balance – interim injunction protects applicant’s rights // undertaking protects respondent’s rights
= equality before the law
Enforcement – Court can decide whether to enforce & quantum
If applicant goes on to be successful – no discretion to deny damages – although could be reduced by principles of contract
Eg failure of defendant to mitigate losses
No relevant difference in this respect between interim & substantive final damages
Measure – contract – putting party in same position they would have been in had injunction not been granted
Damages have to be foreseeable, etc
Air Express (HCA) (D applied to Minister for licence to import aircraft – C thought that had exclusive rights to import – sought injunction against Minister to prevent from granting licence – interim injunction granted – undertaking granted – action failed – D applied to enforce undertaking
Resisted on ground that have to show causal relationship between injunction & harm – no causation because no licence would have been granted anyway, because M would have awaited outcome
Reasoning
Court – ‘but for’ causation – Minister wouldn’t have granted anyway
AZ Evidentiary objection – if they sought injunction, must be because Minister would have granted licence
Causation – should Cs have benefit of uncertainty created by their litigation?
Oxy-Electrics (enforcement of restrictive covenant against builders of mosque – would raise property costs & rent – Ds risked rise in building costs – applied for order requiring undertaking for damages
Ds in difficult situation – risk of having to knock building down <> risk of rising building costs
D shouldn’t be able to put risk onto C
Germany –...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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