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Interim Remedies Notes

BCL Law Notes > Principles of Civil Procedure Notes

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Interim Remedies - Interim Injunctions?

General rule - no security for judgment in UK law BUT o Interim injunctions - o 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 o 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 o 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 o 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 o Even where monetary damage - difficult to quantify magnitude of consequential harm

??o 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 o BUT don't have all the evidence available Prospects of success x magnitude of harm = measure most likely to reduce harm to rights o 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 o 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 o 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 o Balance - interim injunction protects applicant's rights //
undertaking protects respondent's rights o = equality before the law
? Enforcement - Court can decide whether to enforce &
quantum o 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 o No relevant difference in this respect between interim &
substantive final damages

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