Consideration of Injunctions - Essay Example

Court Interim Injunctions Introduction Injunctions have for a long time been used as an alternative way of obtaining justice and fairness for people whose rights have been violated. These include people who have faced domestic violence, trademark and copyright infringement, criminal and civil contempt, stalking, unauthorized transfer of real property, physical or sexual abuses among other types of injustices. For a court to grant an injunction, the applicant should be able to give a very strong evidence(s) for their claims rather than just presenting mere suspicions. However, injunctions are not issued frequently as a means of granting fairness or issuing justice. There are some situations in which a court may feel that granting of an injunction is at the extremities of its powers. These include cases where the conduct of the defendants shows that they would not comply with any injunction issued against them. In this case, the issuance of an injunction would be impracticable for them. The court would have to give an alternative solution for the protection of the applicant and their property (Belletti v MOrici 2009). Interim Injunctions An interim or temporary injunction on the other hand is an order that prohibits a party to a lawsuit from taking a particular action for as long as there has been no trial or other action by a court. A temporary injunction has the purpose of maintaining the status quo. This way it prevents irreparable damage or irreversible change before a court resolves the legal matter at hand. The temporary injunction may further be followed by a permanent injunction that automatically cancels the temporary one (Molan 2005). The court has to consider a number of factors before instituting an interim injunction. The court has to consider whether the one making a claim has real prospect of succeeding. Secondly, the court must consider if the damages adequately remedy the situation. The court must also establish the cause of action that will least cause damage to those engaged in the lawsuit. In the event that there are any special factors worth considering, the court will also have to pay attention to them. In the event that it is unlikely for a trial to occur, the court will consider the merits of each of the claims presented. These factors however never apply to search orders and freezing injunctions (Hamilton Watch Co. v. Benrus Watch Co). The Freezing Injunction According to Rees (2009), a freezing interim injunction is normally granted in order to restrain the defendant from disposing or dealing with their property. Application for a freezing injunctions could be rejected in cases where the there is lack of sufficient evidence to proof that the defendants possess the property or material being referred to in the case. This means that there is no need to issue an injunction because the defendants do not seem to have any power to dispose or destroy the aforementioned property. Refusal of a freezing injunction can also arise where the applicant fails to proof that the defendant is capable of disposing or destroying the property. Therefore, the court will not be having a good basis to grant the injunction. Applicants should be quick in their actions after applying for an interim injunction. Any delay will prompt the court to conclude that the injunction is not necessary. It will not be convinced enough to grant it. The applicant should give undertakings to compensate for any damages to the defendant by the injunction. The freezing injunction would be denied by a court if the applicant fails to demonstrate the ability to meet liabilities for any damages that could be caused by the injunction to the defendant. This is necessary because it may turn out that the injunction should not have been granted hence the need to compensate the defendant (Hamilton Watch Co. v. Benrus Watch Co). In some cases, complications in a case may lead to a court rejecting application for an interim injunction. For example, if the present defendants were not parties in the main proceedings. It could also be due to the fact that it is not clear how the plaintiff would succeed in the proceedings by giving evidence that the defendants mentioned later possessed their property. This means that granting an injunction in this case is of little impact to the final decision by the court. According to Molan (2005) a search order usually applies to cases involving pirated products or goods for example unauthorized copies of literature, movies or songs and other products. The court should be persuaded that the defendant is capable of destroying such materials. In this case, the court may grant a search order to have the documents or material be at the possession of the applicant or be given copies of them. The search order will permit the plaintiff’s representatives get into the premises of the defendant and remove such documents or other materials of evidence. However, the search order should be allowed in by the owner of the premise (TDK Tape Distributor (UK) Ltd v Videochoice Ltd 1986). A court can refuse to grant a search order if the material or documents that the applicant wants protected does not form the subject-matter of the case. This means that there is no need to have them protected because they will not prevent the applicant from receiving justice. Destruction of such documents or material will not help the defendants defeat the ends of justice. There should be enough evidence that the documents that need to be protected will be vital evidences by the applicant for the case. There may be no evidence that the action of the defendants is likely to cause irreparable damage or harm to the applicant if an injunction as a form of relief is not granted (Pappan Enters. v. Hardees Food Sys). It could also be that the freezing injunction will offer little benefits to the applicant or that the damages will not adequately compensate for the defendant. Therefore, the court is more likely to use other forms of granting justice and fairness. According to Robinson (2009), an applicant may request for super injunction or a gag order to protect information about their personal lives or court proceedings. For example, publishing by the media. However, a court may refuse to grant the super injunction if the information has already been made public through other means. For court proceedings, it could be because revealing the information may not make any difference. There may be conflicting human rights as provided by the Human Rights Act that may cause a court to reject application for an injunction. For example right to privacy for individuals and freedom of expression by media. The court will refuse an injunction against the media if it is not represented during the court proceedings. In this case, they are harmless to the individual’s privacy. It could also be because the applicant has not given sufficient reasons why the information should not be published. Conclusion The granting of an interim injunction is at the extremities of a courts power if the applicant fails to meet three main conditions. That is, lack of clear evidence that the defendant was in possession of the property or evidence material , their potentialities of destroying or disposing them and that its destruction will cause the applicant serious damages. These conditions which should be met make it hard for courts to grant injunctions. The injunction can only be granted by a court if there is no other way of granting justice to the applicant. References Belletti v MOrici [2009] EWHC 2316. Online http://www.jerseylaw.je/judgments/jerseylawreports/Display.aspx?Cases/JLR1989/JLR890354.htm. Retrieved on 3rd march, 2011 H, Rees, Freezing Injunctions: A Nuclear Weapon for the Commercial Litigator (Carter-Ruck Solicitors, London 2009) Hamilton Watch Co. v. Benrus Watch Co. (2d Cir. 1953) 206F.2d 738, 740. Online http://www.jerseylaw.je/judgments/jerseylawreports/Display.aspx?Cases/JLR1989/JLR890354.htm. Retrieved on 3rd march, 2011 J, Robinson, “How super-injunctions are used to gag investigative reporting” (2009) The Guardian (London) M, Barrister, and R, Merkin, Nippon Yusen Kaisha v. G. And J. Karageorgis (1975) Lloyds Law Reports 137. Online http://www.journalism.co.uk/news-features/injunctions-and-super-injunctions-an-introduction/s5/a538346/ Retrieved on 3rd march, 2011 M. Molan, Criminal Law: Cases and Materials (3rd ed Cavendish, London 2005) 29. Mobil v Petroleos [2008] 1 Lloyd’s Rep 684. ETI Euro Telecom v Bolivia [2008] EWHC 1689. Online http://www.jerseylaw.je/judgments/jerseylawreports/Display.aspx?Cases/JLR1989/JLR890354.htm. Retrieved on 3rd march, 2011 Pappan Enters. v. Hardees Food Sys. (3d Cir. 1998). 143F.3d 800, 803. Online http://www.jerseylaw.je/judgments/jerseylawreports/Display.aspx?Cases/JLR1989/JLR890354.htm. Retrieved on 3rd march, 2011 S. Gee “The remedies carried by a freezing injunction”. (2006). The quarterly review 122 pp 535-542 TDK Tape Distributor (UK) Ltd v Videochoice Ltd [1986] 1 WLR 141. Online http://www.yourrights.org.uk/yourrights/privacy/power-of-officials-to-enter-your-home/search-orders.html.Retrieved on 3rd march, 2011 Read More