AIMS AND OBJECTIVES
By the end of this chapter you should be able to:
■ understand the original policy that led to the introduction of the various equitable remedies
■ appreciate a number features which underlie the granting of equitable remedies
■ identify the pre-requisites for the granting of an injunction and the various types of injunctions that exist
■ to understand when an order for specific performance may be granted
■ appreciate the existence of other equitable remedies such as rectification, rescission and account
A major contribution of equity during its formative period prior to the Judicature Acts 1873/75 was the development of a variety of equitable remedies such as the injunction, specific performance, rectification, rescission and account. This was known as the concurrent jurisdiction of equity that gave effect to recognised legal or equitable rights by creating new remedies. Before examining these individual remedies it is worth identifying a number of features of equitable remedies in general.
The only common law remedy that may be claimed as of right is damages. All other remedies are equitable and are granted at the discretion of the court. This does not mean that the availability of equitable remedies is subject to the ‘whim and fancy’ of the court. Instead, the discretionary nature of the award is tantamount to the court taking into account all relevant matters that lean towards the justice or injustice of granting the remedy. In short, the court takes a holistic view of the circumstances before deciding whether or not to grant the remedy. Factors that are relevant to the court before deciding whether to grant an equitable remedy include whether the remedy at common law is inadequate, whether the conduct of the claimant has been inequitable, whether the availability of the remedy sought may cause undue hardship to the defendant, whether there has been considerable delay in bringing the claim, whether the imposition of the remedy may cause the defendant to suffer undue hardship. This requires the judge to conduct a balancing exercise. On the one hand the judge will weigh up the inconvenience or detriment that will be suffered by the claimant if he were left without an equitable remedy and determine whether this outweighs the hardship that may be suffered by the defendant. The effect is that the exercise of the discretion by the courts, in the context of equitable remedies, has been reduced to a structured set of principles in an effort to achieve justice for all the parties concerned. In Haywood v Cope (1858) 25 Beav 140, Romilly MR expressed the approach in the following manner:
|‘[T]he rule which is adopted in this and the other Courts, which is, that the discretion of the Court must be exercised according to fixed and settled rules; you cannot exercise a discretion by merely considering what, as between the parties, would be fair to be done; what one person may consider to be fair, another person may consider very unfair; you must have some settled rule and principle upon which to determine how that discretion is to be exercised.’|
An injunction is an order of the court directing a party to the proceedings to do or refrain from doing a specified act. There are several different types of injunctions. An injunction may be ‘prohibitory’, i.e. forbidding the performance of a particular act; or ‘mandatory’, i.e. ordering the defendant to do a particular act. Injunctions could also be classified as ‘perpetual’, i.e. following the final determination of the rights of the parties or, until recently, as ‘interlocutory’ (now referred to as ‘interim’), i.e. pending the determination of rights at the trial. In addition, a ‘quia timet’ (literally, ‘because he fears’) injunction could be obtained where the claimant fears that damage may occur in the future.
Courts of equity have had the power to grant injunctions for a considerable period of time. Injunctions, like all equitable remedies, are discretionary, but the court will exercise its discretion according to well-established equitable principles. Originally, injunctions were unavailable in the common law courts but s 79 of the Common Law Procedure Act 1854 gave such courts the power to issue an injunction instead of awarding damages. Likewise, the Chancery Procedure Amendment Act 1858, known as Lord Cairns’ Act, gave the courts of equity the power to award damages instead of granting an injunction. This power, entitling a court of equity to award damages, does not mean that the court will be more reluctant to issue an injunction when the circumstances warrant such a remedy.
Since the Judicature Acts 1873–75 both legal and equitable remedies have been available in the same court, but it seems that the template governing the principles that are applicable to injunctions remains the same. The jurisdiction today is laid down in s 37(1) of the Senior Courts Act 1981 (previously enacted as s 37(1) of the Supreme Courts Act 1981) which provides that: ‘The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.’
The power of the County Court to issue injunctions is now contained in the County Courts Act 1984 (as amended by the Courts and Legal Services Act 1990) and, subject to exceptions, its jurisdiction is similar to the High Court.
In general, the court will take similar principles into account when considering applications for each type of injunction. These principles are:
■ The claimant is required to prove the infringement or potential infringement (in the case of a quia timet injunction) of a right which is recognised either in equity or at common law as a pre-condition for the grant of an injunction.
|Day v Brownrigg  10 Ch D 294, (CA)|
The claimants sought an injunction to prevent the defendant from naming his house, ‘Ashford Lodge’, a name used by the claimant for 60 years. The claimants alleged that the defendant’s conduct caused them a great inconvenience and annoyance, and had materially diminished the value of their property. The court decided that the act of the defendant was not a violation of any legal right of the claimant and therefore the claim was dismissed.
|‘This Court can only interfere where there is an invasion of a legal or equitable right. No such legal or equitable right exists … I think it right to add that the power given to the Court by sect. 25, sub-sect. 8, of the Judicature Act, 1873, to grant an injunction in all cases in which it shall appear to the Court to be “just or convenient” to do so, does not in the least alter the principles on which the Court should act.’|
■ The injunction will not be granted where damages will provide an appropriate remedy. For instance, where the damage had already occurred to the claimant and could be rectified by a monetary payment and was not likely to be repeated an injunction may not be granted. But once the claimant has shown that the defendant has infringed his (claimant’s) rights and intends to continue with such course of conduct, he will prima facie be entitled to an injunction.
|Pride of Derby and Derbyshire Angling Association v British Celanese  Ch 149|
An injunction was granted on behalf of the claimants in order to restrain the defendants from causing or permitting the pollution of the rivers Trent and Derwent, as a consequence of their business activities.
|‘[T]he question arises whether there should be any injunction in the circumstances or whether the plaintiffs, should content themselves with some less relief? Prima facie, a plaintiff, whose rights have been invaded … is entitled to relief from this court by way of injunction.’|
A similar approach was taken in Shelfer v City of London “Electric Lighting Co  1 Ch 287. The courts are very reluctant in allowing a wealthy defendant to purchase from the claimant the right to continue to commit a wrong. On the other hand, the court may exercise its discretion not to grant an injunction where the damage to the claimant is small, and his loss could be estimated in monetary terms and will provide adequate compensation and the grant of an injunction may be unnecessarily oppressive on the defendant. This requires the court to balance the relative interests of the parties.
|Shelter v City of London Electric Lighting Co  1 Ch 287|
The operations of the defendant electricity company caused structural damage to a house and nuisance to its occupier. The owner and occupier sought relief by way of injunction. The trial judge refused injunctive relief and awarded damages. His decision was reversed by the Court of Appeal, which roundly rejected the view that wrongs should be permitted to continue simply because the wrongdoer was able and willing to pay damages. The court gave guidance:
|‘Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction.’|
The court followed up with guidelines as to the circumstances in which damages may be awarded in lieu of an injunction. At the same time he emphasised that the discretionary nature of this limitation varies with the facts of each case:
|‘There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that — (1) If the injury to the plaintiff’s legal rights is small, (2) and is one which is capable of being estimated in money, (3) and is one which can be adequately compensated by a small money payment, (4) and the case is one in which it would be oppressive to the defendant to grant an injunction: — then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff’s legal right to light to a window in a cottage represented by 15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the Plaintiff is certainly not small, nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment.’|
■ An injunction will not be granted where the injury to the claimant’s rights is trivial and an alternative remedy, such as a declaration, is available.
|Llandudno UDC v Woods  2 Ch 705|
The claimants sought an injunction to restrain the defendant from preaching on a beach at Llandudno and a declaration that he was a trespasser. The court decided that the complaint was ‘too trivial’ to justify the grant of an injunction but the claimants were entitled to a declaration to the effect that the defendant was a trespasser.
|‘It is no part of the duty of the council, as lessees from the Crown for an unexpired term of two years, to prevent a harmless user of the shore. There are persons who derive satisfaction from listening to the addresses of the defendant, and the defendant derives satisfaction from delivering these addresses. I cannot conceive why they should be deprived of this innocent pleasure. Nobody is obliged to listen. Nobody is molested … I cannot refuse to make a declaration that the defendant is not entitled, without the consent of the plaintiffs, to hold meetings or deliver addresses, lectures, or sermons on any part of the foreshore in lease from the Crown. But I decline to go further. I decline to grant an injunction. That is a formidable legal weapon which ought to be reserved for less trivial occasions.’|
■ The court will take into account the general equitable principles such as hardship to the parties, inordinate delay on the part of the claimant in initiating proceedings and whether the claimant comes to court ‘with clean hands’. The relative importance of these factors may vary depending on the type of injunction sought by the claimant. The oppressive nature of the order on the defendant is required to be judged on the date of the application for the grant.
|Jaggard v Sawyer  1 WLR 258|
The claimant sought an injunction to prevent the defendants trespassing over his property in breach of a restrictive covenant that prohibited building on the plot. The claimant delayed by about two years in seeking an injunction to prevent the defendants from building a house on the plot. At this time the building was at an advanced stage. The court refused the injunction on the ground that the injunction would have been unduly oppressive on the defendants. In reaching that conclusion, the court took into account the conduct of the claimant and defendants, the nature of the trespass and the relevant land. The Court of Appeal affirmed the trial judge’s ruling that the claimant’s failure to seek interlocutory relief at an early stage and the fact that the restrictive covenants were not absolute or perpetually inviolable, led to the conclusion that the grant of an injunction would be oppressive, and to award the claimant damages in lieu of an injunction.
‘In considering whether the grant of an injunction would be oppressive to the defendant, all the circumstances of the case have to be considered. At one extreme, the defendant may have acted openly and in good faith and in ignorance of the plaintiff’s rights, and thereby inadvertently placed himself in a position where the grant of an injunction would either force him to yield to the plaintiff’s extortionate demands or expose him to substantial loss. At the other extreme, the defendant may have acted with his eyes open and in full knowledge that he was invading the plaintiff’s rights, and hurried on his work in the hope that by presenting the court with a fait accompli he could compel the plaintiff to accept monetary compensation. Most cases, like the present, fall somewhere in between.
In the present case, the defendants acted openly and in good faith and in the not unreasonable belief that they were entitled to make use of Ashleigh Avenue for access to the house that they were building. At the same time, they had been warned by the plaintiff and her solicitors that Ashleigh Avenue was a private road, that they were not entitled to use it for access to the new house and that it would be a breach of covenant for them to use the garden of No 5 to gain access to No 5A. They went ahead, not with their eyes open, but at their own risk. On the other hand, the plaintiff did not seek interlocutory relief at a time when she would almost certainly have obtained it. She should not be criticised for that, but it follows that she also took a risk, viz that by the time her case came for trial the court would be presented with a fait accompli. The case was a difficult one, but in an exemplary judgment the judge took into account all the relevant considerations, both those which told in favour of granting an injunction and those which told against, and in the exercise of his discretion he decided to refuse it. In my judgment his conclusion cannot be faulted.’
|Injunctions — general principles|
|Infringement of a legal or equitable right||Day v Brownrigg (1878)|
|Damages inadequate||Pride of Derby and Derbyshire Angling Association v|
British Celanese (1953); Shelter v City of London
Electric Lighting Co (1895)
|Trivial injury to the claimant and alternative remedy available||Llandudno UDC v Woods (1899)|
|Excessive hardship to the defendant if injunction granted||Jaggard v Sawyer (1995)|
As indicated earlier, there are various types of injunctions — prohibitory, mandatory, quia timet, interim, freezing and search orders. Another classification of injunctions is into perpetual or interim. This section will outline the various types of injunction.
A perpetual or final injunction is one that is granted at the trial of the claim or other hearing in which final judgment is given. Whereas an interim injunction is one made prior to the trial and which is intended to last only until the trial at the latest. A perpetual injunction may be prohibitory, mandatory or quia timet.
A prohibitory injunction is generally said to be easier to obtain than a mandatory one and is available to restrain the defendant from acting in a particular way, as in Shelfer’s case and Pride of Derby v British Celanese, see above.
Such an injunction would also be available to restrain the breach of a negative term of a contract. In such a case it has been said that the court must grant the injunction once it is satisfied that there has been a breach of the term. In Doherty v Allman, Lord Cairns explained that in such a case it was not necessary to consider factors like the balance of convenience as the parties had themselves freely contracted not to do a particular thing. The court, nonetheless, has a discretion to decide whether the injunction ought to be granted. In exercising that discretion the court will consider, among other things, whether the performance of the act sought to be restrained will produce an injury to the party seeking the injunction; whether that injury can be remedied or atoned for, and, if capable of being atoned for by damages, whether those damages must be sought in successive suits, or could be obtained once for all.
|Doherty v Allman  3 App Cas 709|
Two leases of land were granted subject to positive covenants to maintain the premises in good order, but without a reservation of a power of re-entry for breaches of the covenants. The defendants were proposing to act in breach of the covenant and the claimants sought an injunction. The court refused the application in the exercise of its discretion and left the claimant to pursue his claim for damages.
|‘The Court of Equity … will consider for example whether the injury which it is asked to restrain is an injury which if done cannot be remedied. It will consider whether, if done, it can or cannot be sufficiently atoned for by the payment of a sum of money in damages. It will ask also this question, — suppose the act to be done, would the right to damages for it be decided exhaustively, once and for all, by one action, or would there necessarily be a repetition of actions for the purpose of recovering damages from time to time? Those are matters which a Court of Equity would well look to, and on the other hand a Court of Equity would look to this: If we interfere and say, in aid of this affirmative covenant, that something shall not be done which would be a departure from it, no doubt we shall succour and help the Plaintiff who comes for our assistance. But shall we do that? Will the effect of our doing that be to cause possible damage to the Defendant, very much greater than any possible advantage we can give to the Plaintiff? Now, in a case of that kind, where there is an amount of discretion which the Court must exercise, those are all considerations which the Court will carefully entertain before it decides how it will exercise its discretion.’|
|Lord Cairns LC|
The Attorney General may apply for a prohibitory injunction to restrain the continued commission of a criminal offence if he considers that such a course of action will be in the public interest. In Gouriet v Union of Post Office Workers  3 WLR 300, the House of Lords stressed that this procedure is restricted to the Attorney General in order to enforce public rights and is not available to individuals.
A mandatory injunction is one which orders the defendant to perform a specific act, such as taking down a hoarding that unlawfully infringes the claimant’s rights. There is a striking similarity between this injunction and an order for specific performance (see later). However there are certain contracts of which specific performance will not be granted and the claimant is usually left to his common law right of damages. Refusing an injunction in respect of a contract expressed in positive terms in Bower v Bantam Investments Ltd  1 WLR 1120, Goff J said:
|‘[T]o found a claim for relief by way of injunction it is necessary to point to something specific which a defendant has by implication agreed not to do. The mere fact that his conduct or proposed conduct is inconsistent with his obligations under the contract is not sufficient.’|
In recent times even the general principle seems to have been restricted. Mandatory injunctions have been granted to enforce contracts for the supply of goods, even though the contracts were not within the jurisdiction to grant specific performance, but where the failure to supply the claimants with petrol would have put them out of business, e.g. Sky Petroleum Ltd v VIP Petroleum Ltd  1 WLR 576, see later.
Moreover, the defendant must know exactly what it is that he has to do as disobedience to an injunction is a contempt of court.
The question of hardship to the defendant is of particular importance and public interest factors may be relevant in determining this question.
|Wrotham Park Estates Ltd v Parkside Homes Ltd  3 All ER 321|
The claimants applied to the court for a mandatory injunction requiring the defendants to demolish houses which had been built in breach of a restrictive covenant. The grant of an injunction is always discretionary and in this case the court took the view that it would have been ‘an unpardonable waste of much needed houses’ to order their demolition. A just substitute for mandatory injunctions would be damages, i.e. a sum of money as might reasonably have been demanded by the claimants from defendants as a quid pro quo for relaxing the covenants.
|‘It is no answer to a claim for a mandatory injunction that the plaintiffs, having issued proceedings, deliberately held their hand and did not seek the assistance of the court for the purpose of preserving the status quo. On the other hand, it is, in my view, equally true that a plaintiff is not entitled ‘as of course’ to have everything pulled down that was built after the issue of the writ. The erection of the houses, whether one likes it or not, is a fait accompli and the houses are now the homes of people. I accept that this particular fait accompli is reversible and could be undone. But I cannot close my eyes to the fact that the houses now exist. It would, in my opinion, be an unpardonable waste of much needed houses to direct that they now be pulled down and I have never had a moment’s doubt during the hearing of this case that such an order ought to be refused. No damage of a financial nature has been done to the plaintiffs by the breach of the layout stipulation. The plaintiffs’ use of the Wrotham Park estate has not been and will not be impeded. It is totally unnecessary to demolish the houses in order to preserve the integrity of the restrictive covenants imposed … Without hesitation I decline to grant a mandatory injunction.’|
However, in Charrington v Simons Co Ltd  1 WLR 598, the Court of Appeal took a different view and granted a mandatory injunction requiring the defendant company to remedy its breach of a covenant contained in a deed of conveyance made between the parties where there had been a plain breach of covenant which resulted in interference with the claimant’s business. The trial judge suspended the injunction for up to three years to enable the defendant to carry out works on the claimant’s land, with a strong indication that if the claimant did not consent to this the injunction would be discharged. On appeal the court modified the order and deleted the suspension contained in the order.
|‘In our judgment the learned judge, in adopting the course which he did, travelled beyond the bounds within which discretion may be judicially exercised; for in effect he sought to force on a reluctant plaintiff something very like a settlement involving operations by the defendant company on the plaintiff’s land which must lead to greatly increased harm to his business, as a condition or term of his obtaining a mandatory injunction should the works not prove a satisfactory solution. If the learned judge, in his judgment, had said to the plaintiff that he would not grant the injunction unless the plaintiff consented to submit to these works, and the plaintiff refused so to give consent, it would not in our judgment have been a proper ground on which to withhold the injunction to which the plaintiff was otherwise entitled. The course taken by the judge was, it seems to us, no different in substance. We accordingly allow the appeal on this point, with the result, we think, that so much of the order as suspends the operation of the injunction and is dependent on such suspension should be deleted.’|
This expression literally means ‘because he fears’. A quia timet injunction is available to the claimant before the occurrence of an apprehended injury or damage to person or property, e.g. where the defendant threatened to demolish a building and the claimant alleged a right of support. To some extent, this type of injunction conflicted with the general principle that the claimant must show injury to a recognised right. Hence, a quia timet injunction requires strong evidence in support. Lord Upjohn in Redland Bricks v Morris  AC 652, explained the nature of a quia timet injunction thus:
|‘My Lords, quia timet actions are broadly applicable to two types of cases: first, where the defendant has as yet done no hurt to the plaintiff but is threatening and intending (so the plaintiff alleges) to do works which will render irreparable harm to him or his property if carried to completion. Your Lordships are not concerned with that and those cases are normally, though not exclusively, concerned with negative injunctions. Secondly, the type of case where the plaintiff has been fully recompensed both at law and in equity for the damage he has suffered but where he alleges that the earlier actions of the defendant may lead to future causes of action.’|
|Redland Bricks v Morris  AC 652|
The claimants carried on the business of market gardeners and the defendant was involved in quarrying activities on adjoining land. Following land subsidence as a result of excavations carried out by the defendant the claimants applied for an injunction. The purpose of the injunction was to order the defendant to restore support to the claimants’ market garden. The House of Lords refused the injunction on the grounds that it was not clear precisely what action the defendant was expected to take, the defendant had not behaved unreasonably, it was not clear that further damage would have occurred and the costs of restoring support to the building was out of all proportion to the value of the claimant’s land.
It is particularly difficult to obtain a mandatory quia timet injunction. In Redland Bricks v Morris, Lord Upjohn stated that such injunctions would normally only be granted:
■ where the claimant showed a strong possibility of damage occurring;
■ where the remedy of damages would not be appropriate if such damage did occur;
■ where the cost to the defendant was not disproportionate (as the claimant would retain his normal remedies if damage did occur).
An interim injunction is one made after the commencement of the proceedings but prior to the final determination of the court. As there is often some delay between the issue of the summons and the trial of the action, a claimant may apply for an interim injunction in order to ensure that the defendant does not continue in his injurious conduct during the period before the trial. Normally the claimant will be required to give an undertaking in damages, i.e. the claimant will undertake to reimburse the defendant for any losses which he may have suffered consequent upon the granting of the injunction if it is decided at the trial that he (defendant) did not act unlawfully.
The court’s jurisdiction to grant an interim injunction is now governed by s 37 of the Senior Courts Act 1981 (originally enacted as the Supreme Court Act 1981). The claim to an interim injunction under s 37 is required to be incidental to and dependent upon the enforcement of a substantive right in the main proceedings. In Newport Association Football Club Ltd v Football Association of Wales Ltd  2 All ER 87, the court held that it had jurisdiction to grant an interim injunction even where the cause of action was a claim for a declaration.
The claimant applies for the interim injunction by filing an application notice. This must state the order sought, the date, time and place of the hearing. The application is required to be accompanied by evidence in support. This can be in the form of witness statements, statements of the case or application, verified by a statement of truth. These documents must be served on the defendant three days before the court hears the application. In the case of a freezing injunction or search order, there must be affidavit evidence. In the event of extremely urgent applications the application may be dealt with by telephone.
The principles applicable to the granting of interim injunctions have been the source of much judicial dispute. At one time the court would refuse to grant an interim injunction unless the claimant could show a strong probability of success at the trial of the action. This was the approach taken by the House of Lords in Stratford v Lindley  AC 269. However, in Hubbard v Vosper  2 QB 84, Lord Denning stated that the remedy of an injunction should remain flexible and that the court should take into account all the circumstances of the case.
|American Cyanamid Co v Ethicon Ltd  2 WLR 316|
The claimants, an American company, owned a patent covering certain sterile absorbable surgical sutures. The defendants, also an American company, which traded mainly in the United States, were about to launch on the British market a suture which the claimants alleged infringed their patent. The claimants applied for an interim injunction (originally called an interlocutory injunction) to restrain the defendants’ conduct. The injunction was granted by the judge at first instance with the usual undertaking in damages by the claimants. The Court of Appeal reversed his decision on the ground that no prima facie case of infringement had been made out.
The House of Lords allowed the claimants’ appeal on the following grounds:
1. That in all cases, including patent cases, the court must determine the matter on a balance of convenience, there being no rule that it could not do so unless first satisfied that, if the case went to trial on no other evidence than that available at the hearing of the application, the claimant would be entitled to a permanent injunction in the terms of the interlocutory injunction sought; where there was a doubt as to the parties’ respective remedies in damages being adequate to compensate them for loss occasioned by any restraint imposed on them, it would be prudent to preserve the status quo.
2. That there was no ground for interfering with the judge’s assessment of the balance of convenience or his exercise of discretion and the injunction should be granted accordingly.
In this case, Lord Diplock took the opportunity to modify the principles on which an interim injunction may be granted. The relevant principles, and the order in which they should be considered, are as follows:
■ Is there a serious question to be tried? This means that the claim must not be frivolous or vexatious.
If the answer is no, then the injunction should be refused.
If the answer is yes, then the next question should be considered.
■ Which way does the balance of convenience lie?
■ Are damages an adequate remedy for the claimant and is the defendant able to pay such sum?
If the answer is yes, then the injunction should be refused.
If the answer is no, then the next question should be considered.
■ Does the undertaking as to damages provided by the claimant constitute adequate protection for the defendant and will the claimant be able to honour it?
If the answer is yes, then the injunction will be granted.
If the answer is no, then the next question should be considered.
■ The maintenance of the status quo.
Where the other factors are evenly balanced, the court will prefer to maintain the status quo. The status quo is that state of affairs that existed before the last change of circumstances occurred. Normally this will work in the claimant’s favour but it is not by itself conclusive. Where it is not, the court will go on to consider:
Where the court, having considered the circumstances as stated above and in that order, is still unable to arrive at a decision, it can then go on to consider other factors, including social and economic factors. In American Cyanamid the court took into account the fact that no jobs would be lost and no factories would be closed if the injunction was granted, see Hubbard v Pitt  QB 142.
■ The relative strength of the parties’ cases.
As a last resort, where the court, having considered all of the above, is still unable to arrive at a decision it can take into account the relative strength of the parties’ cases.
Lord Diplock did not refer to Stratford v Lindley  AC 269 in his judgment, accordingly, it is arguable that the two cases conflict. However, subsequent cases have suggested that the principles set out in American Cyanamid are only guidelines and that the point about not considering the relative strength of the parties’ cases relate to those cases in which there are difficult issues of fact and law to decide. In Series 5 Software Ltd v Clarke, Laddie J suggested that Lord Diplock in American Cyanamid did not intend to exclude consideration of the relative strength of the parties’ cases in most applications for interim injunctions. He suggested that what was intended was to avoid having to resolve difficult issues of fact or law on an interim application. The consideration of the relative strength of the parties’ cases is thus not a matter of last resort but should be avoided in cases involving difficult disputes of fact or law.
|Series 5 Software Ltd v Clarke  1 All ER 853|
The claimant company sought an interim injunction to restrain use of commercial information and company equipment by ex-employees. The High Court refused the application on the following grounds: the claimant’s case, while arguable in the sense that the facts at trial could possibly support the allegations made, was weak in relation to some claims, and in relation to others it was impossible at an interlocutory stage to come to a conclusion as to whether there was substance in the claim or the defence. As far as the balance of convenience was concerned, while it was clear that the injunctions sought could effectively deprive the defendants of their means of earning a living, the claimant’s assertion of substantial and immediate damage was unsubstantiated. The court also added that it was not precluded from considering the strength of each party’s case when deciding whether to grant an application for interlocutory relief, but should rarely attempt to resolve difficult issues of fact or law, and any view as to the strength of the parties’ cases should be reached only where it was apparent from the affidavit evidence and any exhibited contemporary documents that one party’s case was much stronger than the other’s.
|‘[I]t appears to me that in deciding whether to grant interlocutory relief, the court should bear the following matters in mind. (1) The grant of an interlocutory injunction is a matter of discretion and depends on all the facts of the case. (2) There are no fixed rules as to when an injunction should or should not be granted. The relief must be kept flexible. (3) Because of the practice adopted on the hearing of applications for interlocutory relief, the court should rarely attempt to resolve complex issues of disputed fact or law. (4) Major factors the court can bear in mind are (a) the extent to which damages are likely to be an adequate remedy for each party and the ability of the other party to pay, (b) the balance of convenience, (c) the maintenance of the status quo, and (d) any clear view the court may reach as to the relative strength of the parties’ cases.’|
Exceptions to American Cyanamid
American Cyanamid was a commercial case involving breach of copyright. In other types of cases it may be difficult to apply the same principles. Accordingly, the court will take the strength of the parties’ case into account in certain exceptional circumstances (rather than apply the guidelines suggested in American Cyanamid), for example:
■ Where the injunction will finally dispose of the matter. To obtain interim relief in such cases the claimant must show a strong prima facie case, or at least more than an arguable case, otherwise the court will permit the defendant’s right to a trial.
■ Where the defendant has no arguable defence. In such cases the court does not consider the principles in American Cyanamid, but it will consider the relative strengths of the parties’ cases, see Patel v WH Smith  1 WLR 853.
■ Cases involving public as opposed to private rights. Where an interim injunction affects public rights, the court will take into account the public interest when determining the balance of convenience. Hence, the principles in American Cyanamid will not be strictly adhered to, see Lewis v Heffer  1 WLR 1061.
■ Interim mandatory injunctions. A mandatory injunction is concerned with undoing what has been done. Granting such an injunction might prove to be a waste of time and money if it transpires that the defendant’s conduct was justified. Accordingly, the court may be reluctant to grant such interim injunctions. In Shepherd Homes Ltd v Sandham  1 Ch 340, Megarry J refused to grant an interim mandatory injunction where the defendant had erected a fence in breach of a restrictive covenant. He went on to say that the case has to be unusually strong and clear before the mandatory injunction will be granted.
■ Where there is a likelihood of a defence (in respect of those acts which are done in contemplation or furtherance of a trade dispute) under s 221 of the Trade Union and Labour Relations (Consolidation) Act 1992.
■ Article 10 of the European Convention on Human Rights protects freedom of expression, subject to exceptions. Section 12 of the Human Rights Act 1998 enacts that a restraint on this freedom requires the court to be ‘satisfied that the applicant is likely to establish that publication should not be allowed’. This test requires the court to look at the relative strength of the case of the applicant.
|American Cyanamid guidelines|
■ Serious question to be tried
■ Balance of convenience in favour of the claimant
■ Undertaking in damages adequate
■ Maintenance of status quo
■ Other relevant factors
■ Relative strength of each party’s case
In recent years the courts have developed new forms of interim injunctions that can be regarded as formidable weapons in the litigation armoury. One of these is the ‘Mareva’ injunction, which is now known as a freezing injunction.
This type of injunction is designed to prevent a defendant from removing assets from the jurisdiction of the British courts (or dissipating assets within the jurisdiction) which, if not prohibited, would defeat the whole purpose of litigation. The title of the injunction originally took its name from the case, Mareva Compania Naviera SA v International Bulkcarriers SA  2 Lloyd’s Rep 509.
|Mareva Compania Naviera SA v International Bulkcarriers SA  2 Lloyd’s Rep 509|
The claimants, Mareva Compania Naviera SA (‘the shipowners’), issued a writ on 25 June 1975 claiming against the defendants, International Bulkcarriers SA (‘the charterers’), unpaid hire and damages for repudiation of a charterparty. On an ex parte application Donaldson J granted an injunction until 17.00 hours on 23 June restraining the charterers from removing or disposing out of the jurisdiction moneys standing to the credit of the charterers’ account at a London bank. The shipowners appealed against Donaldson J’s refusal to extend the injunction beyond 17.00 hours on 23 June. The Court of Appeal dismissed the appeal and extended the injunction until the date of the judgment at the trial.
The original jurisdiction to grant ‘freezing’ orders was assumed by the court as part of its inherent jurisdiction, but today this jurisdiction is laid down in s 37 of the Senior Courts Act 1981 (originally named Supreme Court Act).
The criteria to be satisfied include the following:
■ that the claimant has a good arguable case;
■ that the claimant has satisfied the court that the defendant has control of assets within the jurisdiction and, where an extra territorial order is sought, assets exist outside the jurisdiction;
■ that there is a real risk of dissipation or secretion of assets which would render nugatory any judgment which the claimant might obtain;
■ that the applicant who seeks a freezing injunction ex parte must make full disclosure of all material facts, including any facts that he might reasonably discover;
■ that the claimant has given an undertaking in damages;
■ the defendant should not be prevented from using his assets for a purpose which does not conflict with the purpose of a freezing injunction;
■ the order should not be used to prevent a defendant from living as he has always lived, or from paying legal costs to defend the proceedings;
■ the order should make reasonable provision for the protection of third parties and should include notice of their right to seek variation of the order.
Worldwide freezing injunctions
The court is entitled to make a freezing order that takes effect outside the jurisdiction of the United Kingdom where it is satisfied that the defendant’s English assets are insufficient to satisfy the claim and that the defendant has control of foreign assets and that there is real risk of the disposal of the latter. In addition, the court must be satisfied that the defendant will not be oppressed by the exposure to a multiplicity of proceedings and will be protected against the misuse of any information gained, and that third parties will be protected.
This order derives its name from the case Anton Piller KG v Manufacturing Processes Ltd  1 All ER 779. It was designed by the court for cases where there is a serious risk that the defendant may destroy material evidence before the date of the final hearing. It is a form of a mandatory, interim injunction with discoveries and enables the claimant to attend the defendant’s premises and inspect and take copies of materials (documents and articles) specified in the order.
|Anton Piller KG v Manufacturing Processes Ltd  1 All ER 779|
The claimants alleged a breach of confidentiality in that their copyright material for new machines was leaked to the defendants. Before the main hearing they applied ex parte for an order for discovery of the defendant’s correspondence fearing that it may be destroyed and which was relevant to their claim. The court granted the order. The court laid down the following guidance as to when the order may be made:
■ the claimant must have a strong prima facie case;
■ the claimant must show actual or potential damage of a very serious nature;
■ there is clear evidence that the defendant has incriminating documents or things and that
■ there is a real possibility of these documents or things being destroyed before an inter partes application could be made;
■ the search order is not to be used as a fishing expedition;
■ the claimant is required to give an undertaking to the court as to damages at the time of making the application.
The jurisdiction and purpose for making the order was put on a statutory footing by s 7 of the Civil Procedure Act 1997. Thus the power to enter the defendant’s premises and obtain discoveries of relevant documents and articles is no longer based on the fiction that the defendant had consented to the entry. The order, by itself, is the basis for entry.
The mode of execution was subject to a number of guidelines laid down in Universal Thermosensors Ltd v Hibben  3 All ER 257. These guidelines have been formalised in the Civil Procedure Rules 25. The applicant is required to follow these guidelines:
■ that the order be served and supervised by a solicitor from a different firm from that acting for the claimant;
■ that the solicitor supervising the search should be experienced and knowledgeable about the workings of search orders;
■ that the solicitor should prepare a written report on the execution of the order;
■ that a copy of the report should be served on the defendant and that the report should be presented to the court at an inter partes hearing;
■ that the orders should be served on weekdays during office hours in order to give the defendants the opportunity to obtain legal advice;
■ that the party serving the order should include a woman if it is likely that a woman might be alone at the premises.
Moreover, in Columbia Picture Industries Inc v Robinson  Ch 38, the court ruled that the claimant, having obtained the search order, should not act oppressively or abuse its power in the execution of the order. In addition the court stated that the draconian and essentially unfair nature of a search order in its effect on a defendant requires that it be drawn so as to extend no further than the minimum extent necessary to achieve the purpose for which it was granted, namely the preservation of documents or articles which might otherwise be destroyed or concealed; anything beyond that is impossible to justify. Thus, an order that allows the claimant’s solicitors to take and retain all relevant documentary material and correspondence cannot be justified. Once the claimant’s solicitors have satisfied themselves what material exists and have had an opportunity to take copies thereof, the material ought to be returned to the owner, and should only be retained for a relatively short period for such purpose. It is inappropriate for seized material, the ownership of which is in dispute, such as alleged pirate tapes, to be retained by the claimant’s solicitor pending trial. Although the solicitor is an officer of the court, the main role of the solicitor for the claimant is to act for the claimant. As soon as a solicitor for the defendant is on the record, the claimant’s solicitor ought to deliver the material to the defendant’s solicitor on his undertaking to keep it in safe custody and produce it, if required, in court.
Where these safeguards have been breached by either the claimant or his solicitor, the court may set aside the order. In the event of the order not being set aside, the court can award exemplary damages and the solicitor may be liable for contempt of court.
The effectiveness of the search order has been restricted by the application of the defendant’s privilege against self-incrimination.
|Rank Film Distributors Ltd v Video Information Centre  AC 380|
The court upheld the defendant’s claim to the privilege against self-incrimination in a case that involved breach of copyright.
Section 7(7) of the Civil Procedure Act 1997 (as amended) expressly enacts that the order does not affect the defendant’s privilege against self-incrimination. However, s 72 of the Senior Courts Act 1981 now prohibits the defendant from relying on this privilege in cases involving passing off and/or cases relating to the infringement of intellectual property rights.
The remedy at common law for breach of contract is damages. But in some cases an award of damages would be inappropriate, e.g. where there is a contract for the sale of land or shares in a private company the claimant might want the land or shares for their unique value and would regard damages as a poor substitute. The equitable remedy of specific performance is an order addressed to a contracting party requiring him to perform what he promised to do.
In an action for specific performance the claimant is required to show that there is a contract which is enforceable at law. Hence, all the essential elements of a contract, such as agreement and consideration must be present.
It has often been said that specific performance will not be available unless the remedy is ‘mutual’, i.e. mutually available to either party (see Flight v Boland (1882) 4 Russ 298, an infant was not entitled to specific performance because the remedy is not available against him). However, it seems that this may be an over-simplification. In fact one party may be disentitled to specific performance because he has either delayed in bringing the action or he does not come to the court with ‘clean hands’, e.g. he may have breached a term of the contract. However, the other party may still be entitled to specific performance if he so desires. Thus, the contract may be enforced despite an apparent lack of mutuality. In Price v Strange  3 All ER 371, it was held that mutuality was merely a factor to be considered in the exercise of the court’s discretion. The relevant time for considering the defence of want of mutuality was not the date of the contract but the date of the trial.
Although the availability of the remedy is discretionary the court exercises its discretion, not in an unrestricted manner, but based on settled principles.
Courts of equity were originally prepared to grant decrees of specific performance because it was recognised that in some cases the common law remedy of damages was inadequate. This will be the position in the case of contracts for the sale of property that has a unique quality such as land, paintings, shares in a private company.
The reverse proposition that specific performance will not be ordered where damages would adequately compensate the claimant is an accurate statement of the law. This is especially so in the case of a contract for the sale of unascertained goods or goods which are freely available on the open market. In such a situation, the claimant would be left with his common law remedy of damages as this would enable him to purchase the goods elsewhere. However, in Sky Petroleum Ltd v V.I.P. Petroleum Ltd  1 WLR 576 the court extended the jurisdiction to grant specific performance of a contract in exceptional circumstances where, but for the order, the claimant was in serious danger of being forced out of business. The court issued a mandatory injunction despite the clear link between this remedy and an order for specific performance.
|Sky Petroleum Ltd v V.I.P. Petroleum Ltd  1 WLR 576|
The claimant had entered into a contract whereby the defendant had agreed to supply to the claimant all the petrol it needed. The defendant purported to terminate the contract during a period of limited petrol supplies. The court granted an interim injunction restraining the defendant from refusing to supply the petrol. The court acknowledged that this amounted to specific performance of the contract but stated that it did have the jurisdiction to grant specific performance of a contract for the sale of chattels even though they were unascertained goods.
|‘There is, in my judgment, so far as I can make out on the evidence before me, a serious danger that unless the court interferes at this stage the plaintiff company will be forced out of business. In those circumstances, unless there is some specific reason which debars me from doing so, I should be disposed to grant an injunction to restore the former position under the contract until the rights and wrongs of the parties can be fully tried out…. l am entirely unconvinced by counsel for the plaintiff company when he tells me that an injunction in the form sought by him would not be specific enforcement at all. The matter is one of substance and not of form and it is, in my judgment, quite plain that I am for the time being specifically enforcing the contract if I grant an injunction.’|
Like all equitable remedies, specific performance is discretionary. Accordingly, the courts will take many factors into account when considering whether or not to grant a decree, including laches, the conduct of the claimant and the question of hardship to the defendant. In Patel v Ali, it was held that, in considering the issue of hardship to the defendant, the court could take into account events which had occurred after the contract had been entered into, although this would be rare.
|Patel v Ali  1 All ER 978|
The claimant applied for an order of specific performance for breach of a contract for the sale of a house. There was an unforeseen change in the defendant’s circumstances subsequent to date of the contract of sale. The defendant, a young married woman with three young children contracted bone cancer resulting in amputation of a leg subsequent to the date of contract. The defendant became dependent on assistance from family and friends living in the neighbourhood of the house contracted to be sold. The court decided that it would have inflicted hardship amounting to injustice on the defendant to order specific performance of the contract since that would have the effect of asking her to do what she had never bargained for, namely to complete the sale after more than four years and after all the unforeseeable changes that had taken place during that period. Moreover, after the long period of delay (for which neither party was to blame) it would have been just to leave the claimants to their remedy in damages.
The court may also take into account the conduct of the claimant, such as delay in bringing the claim or breach of a term of the contract as well as hardship that may be suffered by a third party in refusing to make an order for specific performance.
The courts may refuse to make an order of specific performance in particular cases, such as those involving contracts which require constant supervision. The reason being to refrain from the possibility of repeated applications to the court in order to secure compliance with the contract. In Dowty Boulton Paul Ltd v Wolverhampton Corp  2 All ER 277, the court refused to order the defendant to carry on the business of running an airfield. Likewise, in Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd  3 All ER 294, the House of Lords decided that the defendant would not be compelled to keep its supermarket open pursuant to a ‘keep open’ clause in the lease. In this case the court referred to a distinction between orders requiring the defendant to carry on an activity and orders directing him to achieve a result.
It is a question of degree to determine whether or not a contract requires continuous supervision. Even if continuous supervision of a contract should prove to be necessary, specific performance could still be granted provided that it is quite clear what the defendant is required to do. Thus, in Beswick v Beswick  AC 58, all the Law Lords thought it unimportant that the obligation under the contract to pay an annuity to the claimant was a continuing one.
The justification for not ordering specific performance for contracts for personal services are that such contracts may require continuous supervision and it was thought to be contrary to public policy to compel the parties to continue a working relationship where one of them was unwilling to do so. In Lumley v Wagner (1852) 1 De GM & G 604, the court refused to grant specific performance of a contract to sing at a theatre. In Giles & Co v Morris  1 All ER 960, Megarry J stated the rationale for the general rule thus:
|‘The reasons why the court is reluctant to decree specific performance of a contract for personal services (and I would regard it as a strong reluctance rather than the rule) are, I think, more complex, and more firmly bottomed on human nature. If a singer contracts to sing, there could no doubt be proceedings for committal if, ordered to sing, the singer remained obstinately dumb. But instead the singer sang sharp, or flat, or too fast or too slowly … the threat of committal would reveal itself as a most unsatisfactory weapon.’|
But not all contracts for personal services present such difficulties. The courts sometimes draw a distinction between contracts for personal services and contracts to achieve a result that had been agreed between the parties.
|Erskine McDonald Ltd v Eyles  1 Ch 631|
The claimant signed a copyright agreement offering the defendant, an authoress, a publishing contract to write her next three books subject to certain royalty terms. In breach of this agreement the defendant attempted to sell her manuscripts to a rival publisher. The court granted an order of specific performance on the ground that such agreements were not contracts to render personal services, but contracts to sell the products of the labour or industry of the contracting party.
|‘This is not, in my opinion, a contract of personal service. It is a contract by Mrs. Eyles to hand over to the plaintiffs for a consideration the product of her labour; and I can see no difference in principle between this contract and a contract to transfer all future patents or improvements on an invention or a contract by a farmer for the sale of a future crop: see Ward, Lock & Co. v. Long  2 Ch 550.’|
It should be noted that the courts are prepared to grant specific performance of restraint of trade covenants contained in contracts of employment. In Awnayday & Cov D’Alphen (1997), The Times, 24 June, the Court of Appeal enforced anti-solicitation and anti-competition covenants contained in an agreement against the defendants.
As a general principle, specific performance will not be granted where it would be futile or impossible as ‘equity does nothing in vain’. Thus, specific performance will not be ordered of a partnership agreement which is not for a fixed term as the partnership could be terminated anyway at will, see Hercy v Birch. (1804) 9 Ves 357.
Both mistake and misrepresentation may give one party the right to rescind the contract. They may also be used as a ‘defence’ to an action for specific performance as it seems that the court may be more willing to refuse a decree of specific performance than to grant rescission.
|Denny v Hancock  Ch App 1|
The defendant bid for property at an auction, believing that it included, ‘three fine elm trees’, whereas in fact it did not. His mistake was attributable to a plan provided by the claimant which the court found to be misleading. The defendant subsequently wished to withdraw from the contract and the claimant sued for specific performance. The court refused the claimant’s application as it was felt that to grant it would be inequitable. The court also remarked that a unilateral mistake not induced by the claimant might be a ground for refusing specific performance although it would not entitle the defendant to rescind the contract.
|Specific performance — general principles|
■ Damages for breach of contract inadequate
■ Discretionary nature of equity’s jurisdiction
|Patel v Ali (1984)|
■ Contracts not requiring constant supervision
■ Orders which will be practical and effective
■ Equitable remedies were originally created in accordance with principles of justice and fair play to the parties. The only common law remedy was damages but in appropriate cases this remedy may be inappropriate for the claimant. Equitable remedies act in personam and it is a contempt of court to wilfully refuse to comply with the court order.
■ An injunction is an order of the court directing a party to the proceedings to do or refrain from doing a specified act.
■ The claimant is required to prove that a right recognised in law or equity has been infringed by the defendant.
■ The jurisdiction of equity to grant an injunction was activated where the claimant establishes that the common law remedy of damages was an inappropriate remedy.
■ Equity exercised its jurisdiction to grant an injunction in a discretionary manner by considering all the facts such as hardship to the defendant, inordinate delays and improprieties by the claimant.
■ There are a variety of injunctions that may be ordered by the courts including perpetual, prohibitory, mandatory, quia timet, interim, freezing injunctions and search orders.
■ A perpetual or final injunction is an order made following a trial. It is the ultimate remedy applied for by the claimant.
■ A mandatory injunction is an order of the court requiring a defendant to perform an act that he ought to perform. Whether an injunction is prohibitory or mandatory is strictly speaking a matter of substance and not in the form of words used. Thus an order requiring the defendant to stop doing something is prohibitory. Whereas, an order restraining the defendant from not doing something is mandatory.
■ A quia timet injunction may be granted to restrain an apprehended breach of duty. Thus, the claimant is required to discharge a high degree of proof that the breach may occur which will result in the likelihood of substantial damage occurring.
■ An interim injunction is one that is ordered pending the trial of the substantive issues. Guidelines that need to be followed were laid down in American Cyanamid Co v Ethicon Ltd (1975).
■ A freezing injunction is a special interim injunction designed to prevent a defendant from removing assets from the jurisdiction of the British courts (or dissipating assets within the jurisdiction) which, if not prohibited, would defeat the whole purpose of litigation.
■ A search order is a form of an interim, mandatory injunction that may be ordered where there is a serious risk that the defendant may destroy material evidence before the date of the final hearing.
■ Specific performance is an order requiring a party to a contract to perform or complete the performance of his obligations under a contract. The effect of the order is to put the parties in the position they would have been had the contract been performed
■ The claimant is required to establish that damages would not be an adequate remedy. This may be the case where the defendant’s obligation is a continuing one.
■ Specific performance may be ordered where the subject matter of the contract has unique qualities (such as land, paintings, shares in a private company) and the defendant is shown to have acted in breach of his obligations under the contract.
■ In exercising its jurisdiction to grant an order of specific performance the court will take into account the effect of the order on the defendant. If this may result in exceptional hardship the court has the discretion to refuse the order.
■ The court may not order specific performance of contracts that require constant supervision. The purpose is to avoid the need to make repeated applications to the court in order to secure completion of the contract.
■ Likewise, contracts for personal services may not be specifically enforced. Such contracts may require continuous supervision and it was thought to be contrary to public policy to compel the parties to continue a working relationship where one of them was unwilling to do so.
■ The court will not make such an order where it would be futile in nature for ‘equity does not act in vain’, e.g. where the defendant may lawfully terminate a contract despite an order of specific performance.
■ Mistake and misrepresentation may entitle a party to another equitable remedy of rescission and may be a ground for refusing to grant an order of specific performance.
1. What factors should be considered by the court when deciding whether or not to grant an order for an interim injunction?
2. How true is it to say that there must be mutuality between the parties before the court will grant an order of specific performance?