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Tortious Remedies - Injunction

Written by: Ishita Bhaduri - National Law Institute University, Kerwa Dam Rd, Bhopal
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Any legal recourse without remedy is futile exercise. Anyone moving the court in regard of some injury whether past or continuing must first ensure exhaustion of preferred relief measures of seeking damages. The granting of redress by the law means that some person or group will be required by the law to do or refrain from doing something. This redress may take various forms. In the great majority of tort actions, the plaintiff is seeking monetary compensation (damages) for the injury he has suffered and this fact strongly emphasizes that function of tort in allocating or redistributing loss. In many cases however, the plaintiff is seeking an injunction to prevent the occurrence of harm in the future and in this area the “preventive” function of tort predominates.

Part I: Need And Types of Remedies: Damages And Injunctions

The most obvious objective of the law of torts is to provide a channel for compensating victims of injury and loss. Tort is the means whereby issues of liability can be decided and compensation assessed and awarded.

An injunction is the primary remedy sought, for example, in cases of nuisance and economic torts such as interference with contract. This is not because damages are unavailable but because the defendant is engaged in a continuing act and the damage suffered by the plaintiff may not yet have occurred or may be suffered over a long period of time. There are some situations in which the law imposes upon the defendant an obligation to disgorge the profits he has made from his wrongdoing, whether or not the plaintiff has suffered any loss. Injunctions are hence necessary.

Part II: A Detailed Analysis of Injunctions

A. Meaning and scope of injunctions

An injunction is a court order requiring a person to do or cease doing a specific action.
Injunctive relief is a discretionary power of the court and failure to comply with an injunction may result in being held in contempt of court.
Injunctions historically are issued, only "when the remedy at law is inadequate". For example, suppose you own a home surrounded by 100 year old trees and your neighbour claims the trees are on his property and is planning on cutting them down. While the dispute is pending, the court might well issue an injunction preventing the neighbour from cutting down the trees until the matter is heard and completely resolved. Otherwise there could be irreparable harm to the land, money damages could not replace the trees, and the damages you would be entitled to could be speculative.

Another example of when an injunction may be issued is in the case of an ongoing course of conduct that violates your rights. For example, assume X owns a Web site and another firm keeps on coming back and copying the material on X's Web site in violation of copyright notices, 'no trespass' notices, and contractual provisions. A court will issue an injunction to prevent that conduct from recurring.

Roe v. Wade[1]
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justifiable controversies. Ruling that declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and over broadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not justifiable. Appellants directly appealed to this Court on the injunctive rulings, and respondent cross-appealed from the District Court's grant of declaratory relief to Roe and Hallford.

B. Classifying Injunctions

Injunctions may be classified on the basis of either time-period of the order’s prescription or on its nature of order.
(1) Time Period
Injunctions, when classified on time period, exist in two types: Temporary and perpetual injunctions.
Temporary injunction: Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. Such injunctions may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.[2] Temporary or interlocutory injunctions are to continue temporarily, i.e., for a specified period or until further orders of the Court. They are granted on the basis of a prima facie case, until the case is heard and decided on its merits. For instance, there may be need to prevent fraudulent removal or disposal of property, or wrongful seizure of property in dispute, and the injunction may help in status quo to be maintained.[3]

Order 39, Code of Civil Procedure, contains the rules regarding grant of temporary injunctions and interlocutory orders. “1. Cases in which temporary injunctions may be granted.- where in any suit it is provided by affidavit or otherwise-
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuation of breach.-
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after the judgement, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.”

Perpetual Injunction: A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.[4] Perpetual injunctions may be granted under the following circumstances:[5]

1) Subject to other provisions contained and referred to in Chapter VII, Specific Relief Act, 1963, a perpetual injunction may[6] be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions for specific performance of contracts, contained in Chapter II of the Act.

3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant perpetual injunction in the following cases, namely:-
(i) where the defendant is trustee of the property for the plaintiff;
(ii) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(iii) where the invasion is such that compensation in money would not afford adequate relief;
(iv) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

(2) Nature of The Decree

An injunction may be either ‘prohibitory’ or ‘mandatory’. The former forbids some act, and is governed by the provisions of section 38, whereas the latter requires the defendant to do some particular act, which is dealt with in section 39. If the defendant has unlawfully constructed a wall by way of trespass on the plaintiff’s land and is likely to continue with his act further, the Court may order through a mandatory injunction, that the wall be demolished, and through a prohibitory injunction, not to construct it any further.

Prohibitory Injunctions

The most ordinary form of injunctions is the prohibitory injunctions. It resists a person or corporation from doing a continuous act which is detrimental to the plaintiff in his course of ordinary enjoyment of land or other property. This prohibitory injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity). For example, money damages would be of scant benefit to a land owner who wished simply to prevent someone from repeatedly trespassing on his land.

Mandatory injunction

In relatively rare cases, the court may issue a "mandatory injunction", compelling a person, company, or governmental unit take affirmative action to do something. It is not infrequent that a covenantor or his successor acts in breach of the terms of the terms of a covenant which binds him not to do something. The covenantee then seeks a mandatory injunction requiring the covenantor to undo what has already been done, so far as that is possible, perhaps requiring him to destroy what has already been constructed. It is because the mandatory injunction is such a draconian remedy that the courts have often sought the smallest excuse for refusing it. This reluctance is particularly evident if the application is interlocutory because at the end of the suit, it is as well possible that the allegations against the defendant are proved false; then the previous interlocutory decree did injustice to his right to enjoyment of some property or benefits of a business.

The Mareva Injunction

The Mareva injunction, in Commonwealth jurisdictions, is a court order which freezes assets so that a defendant to an action cannot dissipate their assets from beyond the jurisdiction of a court so as to frustrate a judgment. It is named for Mareva Compania Naviera SA v International Bulkcarriers SA,[7] decided in 1975, although the first recorded instance of such an order in English jurisprudence was Nippon Yusen Kaisha v Karageorgis in 1975, decided very shortly before the Mareva decision; however, in the UK the Civil Procedure Rules 1998 now define a Mareva order as a "freezing" order.

It is widely recognised in other common law jurisdictions and such orders can be made to have world-wide effect. It is variously construed as part of a court's inherent jurisdiction to restrain breaches of its process. It is not a security,[8] nor a means to pressure a judgment debtor,[9] nor does it confer a proprietary interest in the assets of the judgment debtor.[10] However, some authorities have treated the Mareva injunction as an order to stop a judgment debtor from dissipating his assets so as to have the effect of frustrating judgment, rather than the more strenuous test of requiring intent to abuse court procedure.

An example of the former would be paying off a legitimate debt,[11] whereas an example of the latter would be hiding the assets in overseas banks on receiving notice of the action. It is recognised as being quite harsh on defendants because the order is often granted at the pre-trial stage in ex parte hearings, based on affidavit evidence alone. A Mareva injunction is often combined with an Anton Piller order in these circumstances. This can be disastrous for a defendant as the cumulative effect of these orders can be to destroy the whole of a business' custom by freezing most of its assets and revealing important information to its competitors. A freezing order will usually only be made where the claimant can show that there was at least a good arguable case that they would succeed at trial and that the refusal of an injunction would involve a real risk that a judgment or award in their favour would remain unsatisfied.[12]

An Anton Piller order is a court order which provides for the right to search premises and seize evidence without prior warning. This is used in order to prevent the destruction of incriminating evidence, particularly in cases of alleged trademark, copyright or patent infringements. The order is named for the case of Anton Piller KG v. Manufacturing Processes Limited,[13] although the first such order was granted by Templeman J in EMI Limited v Pandit.[14]

C. Circumstances of Granting Injunctions

An injunction might also prevent somebody publishing something about you which you do not like. Or an injunction may prevent someone from leaving the country or getting rid of their assets. When the court gives you an injunction, before the injunction can start your opponent must be personally handed a copy of the injunction. This is called "serving" the injunction; your solicitor will be able to arrange this for you as it is definitely not a good idea to do it yourself. An injunction is therefore only valid when the opponent has been served with the court order. Injunctive relief is not a matter of right, but its denial is within the discretion of the court. Whether or not an injunction will be granted varies with the facts of each case.

D. Guiding Principles For Grant or Refusal

1 An injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent the multiplicity of proceedings. No perpetual injunction can be granted to stay any judicial proceedings, which may be pending in any other Court. The rule recognises an exception, viz., when the purpose of the restraint is to prevent the multiplicity of suits.
2 An injunction cannot be issued to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought.

3 An injunction also cannot be issued to restrain any person from applying to any legislative body.

4 The Court cannot grant injunction to restrain any person from instituting or prosecuting any proceeding in a criminal matter.

5 An injunction cannot also be granted to prevent the breach of contract which cannot be specifically enforced. Section 42, Specific Relief Act, 1963 contains an exception to this rule, which reads as under:
“42. Injunction to perform negative agreements.- Notwithstanding anything contained in clause(e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:

Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.”

6 An injunction cannot be granted to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. In Ushaben v. Bhagya Laxmi Chitra Mandir[15] the plaintiffs filed a suit against the defendants to restrain them from exhibiting the film ‘Jai Santoshi Maa’. It was contended that the film held Godesses Saraswati, Laxmi and Parvati to be jealous and were ridiculed; this had hurt the religious feelings of the plaintiff which gives rise to cause of action against nuisance. The balance of convenience was held to be in favour of the defendants and the plaintiffs were free not to see the movie again.
7> An injunction cannot be granted to prevent a continuing breach in which the plaintiff has acquiesced. For the application of this rule it should be a continuous breach of the same transaction extending over a period of time. If a person has assented to something being done he cannot be allowed to complain of the same, subsequently, in view of the application of the equitable doctrine of acquiescence.

8 An injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. This provision is similar to the one contained in section 14(a) according t which when compensation in money is an adequate relief for the non-performance of the contract, the remedy of specific enforcement of the contract cannot be allowed. The only exception is the case of breach of trust, where to protect the interest of the beneficiary, an injunction can be granted against the trustee to prevent the violation of the trust or improperly dealing with the trust property.

9 An injunction cannot be granted when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court. This is based on the equitable principle that if a person wants equity he must come to the court with clean hands. The plaintiff has, therefore, to prove that his conduct was fair and honest, free from any fraud, irregularity or illegality, in his dealings with the defendant.

10 The Court will refuse injunction to the plaintiff who has no personal interest in the matter. When the person filing a suit is a nominal plaintiff, or when the plaintiff contends that the interest of someone else is going to be prejudicially affected,[16] the Court shall not grant injunction to him.

The grant of injunction is a purely discretionary. The Court may grant or refuse to grant the same taking into account various factors like the balance of convenience, possibility of adequate relief by way of damages, the conduct of the parties, and the possibility of enforcing its order. The court can compel the performance of certain acts through a mandatory injunction, if the court is capable of enforcing the same. Through an injunction the Court may order the demolition of illegal structure on a highway, or stop some activity which would cause nuisance, or forbid the publication of a statement which would be defamatory.

Singh, Arora and Dogra, Law of Contract and Specific Relief, HLH Publication (1999)
Jones & Goodhart, Specific Performance (2nd ed.), Butterworths(1996)
[1] 410 US 113 (1973)
[2] Sec. 37(1), Specific Relief Act, 1963.
[3] Singh, Arora & Dogra, Law of Contract and Specific Relief, H.L.H. Publication(1999), p. 1350
[4] Sec. 37(2), Specific Relief Act, 1963.
[5] Sec. 38, ibid
[6] Sec. 54, ibid
[7] [1975] 2 Lloyd's Rep 509
[8] Jackson v Sterling Industries Ltd
[9] Camdex International Ltd v Bank of Zambia (No. 2)
[10] Cretanor Maritime Co Ltd v Irish Marine Management Ltd
[11] Iraqi Ministry of Defence v Arcepey Shipping Co SA
[12] Ninemia Maritime corporation v Trave Schiffahrtgesellschaft m.b.H und Co. K.G , [1983] 1 WLR 1412)
[13] [1976] Ch 55
[14] [1975] 1 All ER 418
[15] AIR 1978 Guj. 13.
[16] N.W. Rly. Administration v. N.W. Rly. Union, AIR 1933 Lah. 203

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