Interlocutory Injunctions: General Principles

• Author: Jeffrey Berryman
• Profession: Professor of Law. Faculty of Law University of Windsor
• Pages: 12-38

CHAPTER

2

INTERLOCUTORY

INJUNCTIONS:

GENERAL

PRINCIPLES

A.

INTRODUCTION

There

are

three distinct stages

in any

civil proceeding:

• the

period leading

up to the

trial,

• the

actual trial resulting

in a

judgment,

and

• the

executing

of the

judgment.

The

interlocutory phase

refers

to any

part

of the

period prior

to

judg-

ment. Interlocutory proceedings

can

focus

on the

matter

in

dispute

or

simply support some ancillary aspect

of the

claim.

An

injunction

is an

order granted

by a

court

of

competent jurisdic-

tion that instructs

a

(legal) person

to do, or

refrain

from

doing,

a

par-

ticular thing. Thus,

an

interlocutory injunction

is

simply

an

injunction

granted during

any

proceeding prior

to

judgment.

It is one of the

most

potent weapons

in the

court's remedial arsenal. Open

any

case report,

and the

odds

are

high that

an

interlocutory injunction application will

be

reported. Because

the

orders

are

available prior

to any

proceeding

being launched they

are

unique

in the law of

remedies.

But

this

extraordinary characteristic also underlies

the

potential

for

abuse,

where

the

injunction becomes

an

unwarranted intrusion

in a

person's

affairs.

Courts have insisted

on

particular

safeguards

being

followed

in

granting interlocutory injunctions

and in

their execution. Some

of

these

safeguards

vary

depending

on the

cause

of

action

filed

to

support

the

request

for the

order.

12

Interlocutory

Injunctions:

General

Principles

13

An

interlocutory injunction

can

literally

be

sought

at any

time. Where

the

circumstances warrant,

it can be

granted without notice

first

being

served

on the

defendant

and

without proceedings having

been

started.

These characteristics make

the

interlocutory injunction

an

essential tool

in

litigation management.

In

fact,

much

of the

attraction

of the

remedy

is the

ability

to get a

preliminary trial

of the

disputed merits, which

may

assist

in

settlement

discussions

or

avoid costly court delays

in

hearing cases.

An

interlocutory injunction

is

also

an

important public

law

remedy:

for

example,

a

government agency

may

seek

the

remedy

to

enforce

public

rights.

It is

also utilised

by

individuals

as a

remedy against governmental

(in)action

by

public

agencies,

particularly

against

a

background

of a

traditional

reluctance

in law to

award damages

in

such circumstances.

In

many disputes

an

interlocutory injunction

can

quickly

shift

the

focus

from

what

is

originally cast

as a

private

and

mono-centric dispute

into

a

public

and

poly-centric one.

For

example,

an

interlocutory

injunction

granted

to

prevent

a

nuisance generated

by the

construction

of

a

building

may

well lead

to the

total cessation

of

work, with immedi-

ate

consequential repercussions

for all

those associated with

the

project.

These secondary parties will

not be

party

to the

dispute

but

may

bear

the

initial brunt

of the

remedy.

In

some areas where there

is a

high element

of

public interest

in the

outcome, legislatures have

stepped

in to

provide guidance,

or to

remove entirely

the

courts' juris-

diction

to

grant interlocutory orders.

Unlike

a

damages judgment, where

the

successful

plaintiff

must seek

further

judicial remedies

for

enforcement

and

where

the

court

thus

plays

a

rather passive role,

an

interlocutory injunction

is

immediately binding

on the

party

to

whom

it is

addressed

and

invites proceedings

for

con-

tempt

if the

order

is

disobeyed. While such proceedings

are

still initiated

by

a

successful

plaintiff

there

is an

immediacy between

the

potential con-

tempt

and the

contempt proceedings that

is

lacking

in the

process

of

ren-

dering

a

defendant

a

judgment debtor.

For

this reason,

and

because non-

observance

is an

immediate challenge

to

judicial authority, courts have

paid greater attention

to the

administration

of

injunctions.

From this quick introduction

it can

readily

be

seen that interlocu-

tory

injunctions present myriad issues that must

be

analyzed.

B.

THE

FUNCTION

OF

INTERLOCUTORY

INJUNCTIONS

An

injunction granted prior

to a

proper trial

of the

merits cannot have

as its

primary

function

the

settlement

of the

dispute.

The

rationale

for