Equitable Discretion in Determining Relief - Case Study Example

Equitable discretion in determining relief The basic principle that is to guide the issue of injunctions for grant of relief is spelt out in the Judicature Act of 18731 which states that the Court may consider the grant of an interlocutory order when it appears to be “just or convenient so to do….either unconditionally or on such terms and conditions as the court thinks just.” This same provision was also carried over into the Supreme Court of Judicature (Consolidation Act) 19252 and the Supreme Court Act of 19813. Therefore, the determination of relief was left largely as a matter of judicial discretion, and this has been guided by the principles of fairness and equity after taking into account, the interests of all the parties concerned, According to Lord Upjohn in Redland Bricks v Morris4 the grant of a mandatory injunction will depend upon the individual circumstances of a particular case; unlike a negative injunction, it can never be “as of course”. In the case of Charington v Simons and Co5, Buckley J granted injunction but suspended it for three years and in stating his reasons, he has highlighted the issue of fairness and justice to both parties in granting the remedy that was sought: “where a mandatory order is sought…..what kind of mandatory order will produce a fair result. A plaintiff should not of course, be deprived of relief to which he is justly entitled merely because it will be disadvantageous to the defendant. On the other hand he should not be permitted to insist on a form of relief which will confer no appreciable benefit on himself and will be materially detrimental to the defendant.”6 The underlying issue of fairness and justice as the basis for determining the grant of a mandatory injunction was similarly elucidated in the case of Sheperd Homes v Sandham7 where Meggary J stated that relevant grounds would also include “the triviality of damage to the Plaintiff, and a “disproportion between the detriment that the injunction would inflict on the defendant and the benefit that it would confer on the plaintiff.” The stated goal, according to Meggary J was a “fair result” and this involved the “exercise of judicial discretion.”8 In the matter of an interlocutory injunction, the purpose behind the issue of such an injunction is to protect the rights of the parties until the time of final disposition of the case. The guiding principles of fairness and justice to both parties were laid out in the case of American Cyanid Co v Ethicon9, which is one of the most significant cases, since it overturned earlier criteria for assessing the merit of an interlocutory injunction, i.e, to examine the probabilities that a prima facie case had been established for the grant of a permanent injunction. According to Russel J, at the Court of Appeal : “if there be no prima facie case on the point essential to entitle the plaintiff to complain of the defendants proposed activities, that is the end of the claim to interlocutory relief.” 10 However, at the House of Lords, Lord Diplock qualified the requirement for the establishment of a prima facie case by highlighting the aspect of the balance of convenience. He stated that the exercise of equitable discretion involves an examination into whether the Plaintiff has an arguable case, and then analyzing the rights of both Plaintiff and defendant and the likelihood of “irreparable harm” to both, to determine where the balance of convenience lay and who was more likely to suffer the greater harm through the grant of the injunction. Thus, if the probability of harm was evenly balanced, the status quo was to be maintained, if this could not be determined easily, a more detailed examination had to be undertaken. The main criteria was to ensure that the claim was not fictitious, with probability of the final outcome not to be an issue. However, there has been criticism leveled against establishing this as the guideline for the exercise of judicial discretion. In the case of Cambridge Nutrition Ltd v British Broadcasting Association11 Kerr J held that the guidelines set out in Diplock may not be applicable on a universal basis , especially in the Cambridge case, “The subject matter concerns the right to publish an article, or to transmit a broadcast, whose importance may be transitory but whose impact depends on timing, news value and topicality.”12 In the case of Fellowes & Son v Fisher,13 Lord Denning upheld the validity of the prima facie approach, while Laddie J added in the case of Series 5 software v Philip Clarke and Ors14 that when the case pertained to confidential business information and secrets, the Court could bear in mind any clear views formulated as to the strength of the individual parties’ cases. Thomas and Gillard point out the latent dangers of the Diplock principle of the Court not forming an opinion, especially in patent cases15, such as SmithKline Beecham PLC v Generics16 where interim injunction was granted. As Nick Bolter points out, it appears the Cyanid principle will have to be, at some point reconsidered since it does allow the formulation of judicial opinion on the strength of a party’s case at the injunction stage17. Another kind of injunction involves an option to the Plaintiff to apply to the Court for a grant of an Anton Pillar order, which is a juidicial tool that allows inspection of an infringer’s premises for purposes of finding and seizing incriminating documents pending a hearing and no notice will be given to the defendant to prevent tampering with the records. This first originated in the case of Anton Pillar K.G. v Manufacturing Processes Ltd18 and was deemed to be an equitable remedy for owners of copyright in the case of infringement, to be exercised when there was a real danger that incriminating documents would be destroyed. As Anne Staines points out, this was to be used only when absolutely necessary “where the ends of justice would otherwise be defeated.”19 But due to the lack of notice given to the defendant it could be equated to a “search warrant” and has come to be more frequently used without adequate justification, thus deteriorating into an inequitable remedy. For instance in the case of Columbia Pictures Industries Inc v Robinson,20 this order was misused to take unauthorized papers including loss of material and Scott J stated that the execution of the order was an “open and flagrant disregard to the defendant’s rights.”21 In the case of Lock Plc. v Beswick22 , Hoffman J refused to grant an Anton Pillar order on the grounds that they can only be used “where there is a paramount need to prevent a denial of justice to the Plaintiffs.” Although several improvements have been introduced, it is still largely considered an inequitable remedy. A Mareva injunction uses a search and seize approach and has also been referred to as a freezing order, whereby a defendant who is resident or present within a jurisdiction can have his/her assets frozen, so that removal is prohibited as well as dealing with the assets, as was the case in Mareva Compana Naviera S.A. v International Bulk Carriers S.A23. In fact, Mareva type injunctions can also be issued on foreign defendants to prevent dealing with assets outside the country as well. The introduction of supervising solicitors has “simplified the plaintiff’s solicitor’s role and it has helped to protect the defendant against excess.”24 It was applicable, with extraterritorial relief possible even when there was a risk to the principles of international comity between courts25. The issue of a world wide Mareva injunction, invoking assets abroad or on foreign based defendants is not permitted26 however, in application, the Mareva injunction has again been determined by the issues of fairness and equity, so that it was granted in some cases27 and denied in others28. The principle for the grant of a Mareva type injunction was laid out by Vinelott J in the case of Derby and Co Ltd and others v Weldon and others (no: 9)29 wherein he stated that in the context of production of information from a computer database, “ the court has a discretion whether to order production and inspection and that the burden is on the party seeking inspection to satisfy the court that it is necessary for disposing fairly of the case or cause or matter or for saving costs.” Conclusion: On the basis of the above analysis of the various kinds of injunctive reliefs that are provided by the Courts, it may be noted that there are no fixed or “right” ways for the administration of temporary relief, to alleviate the possibility of irreparable harm accruing from the normal passage of time for court hearings. Individual circumstances of every case have determined the decisions of the Courts, while the predominating principle has been that of ensuring that both the plaintiff’s and the defendants’ interests are taken into account in making the determination. In most cases, it is the “irreparable harm” that could be caused to Plaintiff or Defendants has been the guiding factor, which overrides even the economic damages that could accrue to them. The Mareva injunctions have shown that even international borders and court amity has not proved to be bar in the Courts working towards the development of fairness and equity in allocating relief. They have not strictly applied the law in such cases, rather they have weighed the rights and harm to Plaintiffs and defendants against each other and granted the relief to the party deemed to be most in need of it from the perspective of fairness and equity. Bibliography Legislation: * Judicature Act of 1873 * Supreme Court of Judicature (Consolidation Act) 1925 * Supreme Court Act of 1981 Articles: * Bolter, Nick, 2002. IP Intelligence: Europe [Online] Available at: http://www.howrey.com/europe/newsletter/Winter2002a/7.html * Thomas, Simon and Gillard, Richard , 2003, Interim injunctions: Recent UK patents case law Elkington and Fife LLP. [online] available at: http://www.elkfife.com/content/ anmviewer.asp?a=32&z=2 * Staines, Anne, 1983. Protection of intellectual property rights: Anton Pillar orders. 46 Modern law Review 274 at 275 Cases: * American Cyanid Co v Ethicon (1975) 2 WLR 316; 1974 FSR 312 at 333 * Anton Pillar K.G. v Manufacturing Processes Ltd 1976 Ch 55 * Ashtiani and Another v Kashi [1987] Q.B. 888. * Babanaft International Co S.A. v. Bassante and Another [1989] 1 All ER 433) * Cambridge Nutrition Ltd v British Broadcasting Association [1990] 3 ALL ER 523 * Charington v Simons and Co (1970) 1 WLR 725 * Columbia Pictures Industries Inc v Robinson (1986) 3 All ER 338 * Derby and Co Ltd and others v Weldon and others (no: 9) (1991) 1 WLR 652 * Fellowes & Son v Fisher [1976] Q.B. 122 * Lock Plc. v Beswick [1989] 1. W.L.R. 1268 * Mareva Compana Naviera S.A. v International Bulk Carriers S.A. (1975) 2 Lloyds Rep. 509 * Redland Bricks v Morris [1970] AC 652 * Sheperd Homes v Sandham (1971) Ch D 340 * Series 5 Software v Clarke [1996] 1 All ER 853 * Siskina v Distos Compania Naviera S.A. [1979] A.C. 210. * SmithKline Beecham PLC v Generics (UK) Ltd [2001] All ER (D) 325 * The Mareva Injunction: A Cruel Tyranny? - Willoughby & Connal [1997] 8 EIPR 479 at p 483 Read More