Interlocutory Injunctions: General Principles

• Author: Jeffrey Berryman
• Pages: 22-65

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CHA PTER 2

INTERLOCUTORY

INJUNCTIONS:

GENER AL PRINCIPLES

A. INT RODUCTION

There are three distinct st ages in any civil proceeding:

• the period leading up to the trial

• the actual tri al resulting in a judgment

• the executing of the judgment

The interlocutory phase refers to any part of the per iod prior to judg-

ment. Interlocutory proceedings can focus on the m atter in dispute or

simply support some ancillary aspect of the claim.

An injunction is an order granted by a court of competent juris-

diction that instr ucts a (legal) person to do, or refrain from doing, a

particular t hing. Thus, an interlocutory injunction is simply an injunc-

tion granted during any proceed ing prior to judgment. It is one of the

most potent weapons in the court’s remedial ars enal. Open any case

report and the odds are high t hat an interlocutory injunction appli-

cation will be reported. B ecause the orders are available prior to any

proceeding being launched they a re unique in the law of remedies. But

this extr aordinary char acteristic also underlies t he potential for abuse,

where the injunction becomes an unwarranted intrusion in a person’s

affairs. Court s have insisted on particular safeguards being followed

in granting interlocutory i njunctions and in their execution. Some of

these safeguards vary depending on the cau se of action f‌iled to support

the request for the order.

Interlocutory Injunc tions: General Principle s 23

An interlocutory injunction can literally be sought at any time.

Where the circumsta nces warrant, it can be granted wit hout notice f‌irst

being served on the defendant and w ithout proceedings having been

started. These characteristics make t he interlocutory injunction an

essential tool in l itigation management. In fact, much of the attraction

of the remedy is the ability to get a preliminary trial of the disputed

merits, which may ass ist in settlement discussions or avoid costly court

delays in hearing cases.

An interlocutory injunction is also an i mportant public law remedy:

for example, a government agency may seek the remedy to enforce

public rights. It is also utili zed by individuals a s a remedy against

governmental (in)action by public agencies, particularly against a back-

ground of a traditional reluctance in l aw to award damages in such

circumst ances.

In many disputes an interlocutory injunction can quickly shift the

focus from what is origin ally cast as a private and mono-centric dispute

into a public and poly-centric one. For example, an interlocutory in-

junction granted to prevent a nuisance generated by the constr uction of

a building may well lead to the tot al cessation of work, with immediate

consequential repercus sions for all those associated w ith the project.

These secondary par ties will not be part y to the dispute but may bear

the initial br unt of the remedy. In some areas where there is a high ele-

ment of public interest in the outcome, legislatures have stepped in to

provide guidance or to remove entirely the courts’ jurisdiction to grant

interlocutor y orders.

Unlike a damages judgment, where the successful plaintiff must

seek further judicia l remedies for enforcement and where the court

thus plays a rather passive role, an interlocutory injunction is immedi-

ately binding on the party to whom it is addre ssed and invites proceed-

ings for contempt if the order is disobeyed. While such proceed ings are

still initiated by a s uccessful plaintiff, t here is an immediacy bet ween

the potential contempt and the contempt proceedings that is lacking

in the process of rendering a defendant a judgment debtor. For this

reason, and because non-obser vance is an immediate challenge to judi-

cial authority, courts have paid greater attention to the ad ministration

of injunctions.

From this quick introduction it can read ily be seen that interlocu-

tory injunctions present myr iad issues that must be analyzed.

THE LAW OF EQUITABLE RE MEDIES24

B. THE FUNCTION OF INTERLOCUTORY

INJ UNCTIONS

An injunction granted prior to a proper tri al of the merits cannot have

as its primar y function the settlement of the dispute. The rationale for

interlocutory injunctions lies elsewhere, in t he effective management

of the dispute by both the parties and the court. Originally, it was

argued that the pri mary function was t he maintenance of the statu s

quo. Unfortunately, def‌ining what the status quo was, and from whose

vantage point, proved to be an illusory goal. For exa mple, take the

enforcement of a restraint of trade clause. Is t he status quo, normally

def‌ined as the last point of ti me when the parties were in har mony,

when the defendant left the plaintiff’s employment; when he started a

business; or when the defendant’s activities began to impinge on the

plaintiff ’s actual revenues? Should the injunction force the closure of

the defendant’s business, or merely prevent further solicitation of new

clients or work? Further, new situations called for much more than

preservation of the stat us quo, however def‌ined. For example, the Mar-

eva injunction, a restr aint on the removal of assets by a defendant from

the court’s jurisdiction, went furt her than merely freezing f uture activ-

ities of the defendant. Rather, it required aff‌i rmative acts of compliance

over matters totally outside the area of dispute, simply to ensure the

effectiveness of judgment once, and if, awarded.

The contemporary justif‌ication for interlocutory relief lies in t he

need to fashion an order that ensure s effective relief can be rendered at

the f‌inal tr ial. This goes beyond a forensic identif‌ication of the statu s

quo and seeks to identify existing and potential r isks that both parties

will exper ience while waiting for trial, as well as ri sks in the conduct of

the trial and the enforcement of judgment. While all litigation entails

some form of delay and hence further loss to one or both litigant s, it is

only the risk of irreparable harm that supports t he need for prelim-

inary inter vention by a court. It has recently been asserted by Lord

Hoffmann, spea king for the Privy Council on the role of an interlocu-

tory injunction that:

The purpose of such an injunct ion is to improve the chances of t he

court being able to do justice a fter a determination of t he merits at

the tria l. At the interlocutory stage, the cour t must therefore assess