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Interim Remedies Notes

BCL Law Notes > Principles of Civil Procedure Notes

This is an extract of our Interim Remedies document, which we sell as part of our Principles of Civil Procedure Notes collection written by the top tier of Oxford students.

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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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