The equitable remedy of injunction.

  

Date Posted: 9/12/2012 12:30:26 AM

Posted By: warira  Membership Level: Gold  Total Points: 1095

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The basic situations where an injunction might be granted;
I. To private individuals whose legal or equitable rights have been violated and the court will grant an injunction to protect it. This is because private individuals have no locus standi to seek an injunction to protect a public right.
II. Sought for private rights recognized in law or equity for example in breaches of contracts, torts or trusts.
III. In family matters for instance an injunction may be granted to a wife to stop the husband from selling their matrimonial property.
IV. In judicial proceedings in the inferior courts, though not to restrain the legislative functions of parliament.
V. In procedural matters; Anton Piller injunctions prevent the destruction of evidence while Mareva injunctions prevent assets from being removed from the jurisdiction.
The prohibitory, mandatory,quia timet, perpetual and interims are the types of injunction we have. Perpetual inunctions are final and discretionary. That is to say it may not be granted even if a legal right has been infringed. It is usually granted where damages would not be sufficient for example where the loss cannot be quantified in money or where damage is a continuing one which would require repeated claims.
Mandatory injunctions are particularly discretionary because they impose a positive duty on the defendant and require constant supervision. The injunction should have terms that will enable the defendant to comply.
Quia Timet injunctions are granted for restraining conduct but the court must be convinced that there is proof of imminent danger of substantial harm.
Interim injunctions are granted by satisfying the court that there is serious question to be tried and if there is then the court must be satisfied that the balance of convenience is in favor of granting an injunction(lord Diplock). The plaintiff is required to pay damages to the defendant for any loss he suffers from the grant

of the injunction if it turns out at the full trial that the plaintiff is not entitled to restrain the defendant’s conduct in this way.
Mareva injunctions commonly known as freezing injunctions are granted to prevent assets from being removed from the jurisdiction. While Anton Piller injunctions commonly known as search injunctions are granted to prevent destruction of evidence.
Defences to claims for injunctions are:
a) Delay, the court may refuse to grant an injunction if the claimant has delayed unreasonably in seeking the order.
b) Acquiescence. This when a person seems to have been silent on the issue and neither stopped the defendant from acting contrary to his will. This may occur even where there is no delay as the evidence of acquiescence will be a matter of fact.
c) Hardship. An injunction will not be granted if it will cause undue hardship on the defendant especially in mandatory and interim injunction.
d) Plaintiff’s conduct. Every one who comes to equity must come with clean hands.

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