Injunction
Disputes & Litigation

Injunctions are granted to enforce a legal or equitable right. Accordingly, a grant presupposes the existence of such a right.  Injunctions are made by a court and usually require a person to do or refrain from doing specified acts, although they may also require a person to positively do something to prevent what would be unlawful conduct leading to damage to the claimant. Court orders such as these are discretionary remedies, in that they are available as of right - it is for the judge to decide after considering a series of factors whether justice would served in the circumstances by granting the order.

Orders for injunctions are most often purely negative, in the sense a legal person is restrained from doing some prescribed conduct.  They may also be positive in that a legal person is ordered to do the acts set out in the order.  The order should be made in a form that the person enjoined is able to understand what he must or must not do upon reading the court order.

If the loss or damage that would be sustained by the claimant would be satisfactorily compensated by an award of money, then it is said that damages are an adequate remedy, and an injunction will not be available unless the case presents exceptional circumstances. Injunctions may be granted on an interim or perpetual basis.

The most frequent form of these orders is in the negative; that is to say, that the order will require the addressee to refrain from performing or doing some act in the future.

Instances of use in commercial law include restraining:

1. publication of libellous (or defamatory) material, 
2. statements that damage a business,
3. passing off,
4. unlawful use of trade marks,
5. groundless threats for alleged infringement of certain intellectual property rights,
6. infringement of intellectual property rights (including copyright, designs, trade marks, patents and breaches of confidence),
7. enforcing the terms of an exclusive licence,
8. trespass to goods.

At the hearing, the claimant must prove that a legal right - whether it is property, a right or an interest - has been contravened or there is a real risk that a legal right will be infringed in the future by the defendant. In instances were special damage must be proven, such as slander, that damage must also be made out.

Interim and Perpetual

An interim (or preliminary) injunction may be granted to maintain the status quo between the parties leading up to the final hearing of the dispute. At the final hearing the dispute is heard and the rights of the parties in the litigation are finally and conclusively determined. Interim injunctions may also be awarded to assist the enforcement of rights. Such special interim injunctions are freezing orders ("a freezer") and search orders, which were historically called Mareva orders and Anton Pillar orders respectively.

Final Injunctions

When the parties rights are finally determined, injunctions may be awarded 'in perpetuity'; this is a reference to the finality to which the parties legal rights as opposed to any temporary effect.

Mandatory and Prohibitive Injunctions

Mandatory injunctions require the defendant to take positive steps to reverse the effects of some wrongful act or to cease an omission that causes the defendant damage. Injunctions that are prohibitory in nature to require the defendant to stop some wrongful conduct.

Discretion in awarding Injunctive Relief

Courts maintain a discretion to award injunctions. Simply because an injunction is not awarded does not mean that a defendant is relieved of liability, as the defendant will remain liable in damages provided the losses suffered are proved in the litigation.