Civil Procedure II: Ekin Kasim Ragu

INJUNCTIONS
DEFINITION An injunction is basically adjudicial order granted at the discretion of the High Court to prevent a party from doing an act or to compel a party to do an act

b) Perpetual injunctions These can only be granted by decree made at the hearing and upon merits of the case.

CLASSIFICATIONS Injunctions can be classified as:

SECTION 50 Specific Relief Act 1950 provides that: The granting of preventive relief is at the discretion of the court The relief may be by way of temporary or perpetual injunction

a) Prohibitory b) Mandatory c) Perpetual d) Interlocutory, interim or temporary e) Quia timet f) Special forms of injunctions

SECTION 51 SRA 1950 provides for:

a) Temporary injunctions

These are injunctions which are to continue for a specified time or until further order of the court. These may be granted at any stage of the suit Are regulated by ORDER 29 RULE 1 RHC 1980

PROHIBITORY A prohibitory injunction is an order to restrain a party from doing an act

Civil Procedure II: Ekin Kasim Ragu SECTION 52 SRA 1950 provides that a perpetual prohibitory injunction may be granted: i. ii. To prevent the breach of an obligation which arises from contract (negative covenant) or When defendant invades plaintiffs right. For ex. Where a) Defendant is the trustee of property for plaintiff b) There is no standard to assess damage caused by the invasion c) The pecuniary compensation is inadequate or cannot be obtained and d) It is necessary to prevent multiple proceedings. A court may grant a mandatory injunction to prevent the breach of an obligation and compel the performance of the required act

CASE: Gibb & Co v Malaysia Building Society Facts of the case: In this case, plaintiff changed solicitors in a dispute with defendant (plaintiffs former solicitors) Plaintiff issued a writ and sought an interlocutory order for defendant to hand over the documents The Federal Court granted an interlocutory mandatory order.

The Federal Court stated that: i. The court has discretion to grant an interlocutory mandatory injunction before the trial in exceptional and extremely rare cases only. Before granting the order, the court will consider the position of the parties and also the questions of hardship and inconvenience. If there is plainly no defence but only to delay, then the interlocutory mandatory injunction may be granted
2

MANDATORY A mandatory injunction orders a party to do a certain act

ii.

iii. SECTION 53 SRA 1950 provides that

Civil Procedure II: Ekin Kasim Ragu QUIA TIMET A quia timet injunction may be granted where plaintiffs right is threatened but not yet infringed. Example: to prevent an injury occurring or a threatened breach which has not yet been infringed (anticipatory breach) it is valid until the end of the trial where a perpetual/ final injunction may then be given the procedures under Order 29 Rule 1 must be followed.

PERPETUAL A perpetual injunction is a FINAL injunction where an order is made at the end of the hearing and binds the parties

The court will consider whether to grant this injunction as part of the relief and damage claimed by plaintiff

INTERLOCUTORY, INTERIM OR TEMPORARY : ORDER 29 RHC 1980

1. A temporary injunction is granted for a specified

plaintiff must show that a substantial damage will be suffered.

period at any stage of the proceedings. The procedures under Order 29 Rule 1 must be followed.

SPECIAL FORMS OF INJUNCTIONS i. Mareva injunction Anton Piller injunction Eringford injunction
-

2. An interim injunction is usually granted in URGENT

ii. iii.

CASES and is valid for only 2 weeks. The Procedure under Order 29 Rule 1 must be followed.

Which is a stay order of the judgement until the appeal is heard

3. An interlocutory injunction is granted before or during

the trial where the CASE IS NOT URGENT.

NO INJUNCTIONS AGAINST THE GOVERNMENT

3

Civil Procedure II: Ekin Kasim Ragu SECTION 29(2) Government Proceedings Act 1956 No injunction, directly or indirectly can be granted against the government or any statutory body b) Facts giving rise to the claim fo the interlocutory relief c) Facts justifying the application ex- parte d) Answers by the defendant to plaintiffs claim or interlocutory relief e) Facts known to plaintiff which might lead te court not to grant relief ex-parte f) Whether any previous similar ex- parte application has been made and if so any order given g) The precise relief sought. Matters to be considered by the court: 1. The court has discretion whether to grant an interlocutory injunction and will consider various matters to prevent the abuse of Order 29.

INTERLOCUTORY INJUNCTION PROCEDURE Case is not urgent [Order 29 Rule 1(3)] 1. Plaintiff must first issue the WRIT or ORIGINATING SUMMONS before applying for the interlocutory injunction 2. Then, plaintiff must apply by INTER PARTE SUMMONS supported by an AFFIDAVIT Case is urgent [Order 29 Rule 1(2)] 1. It must be certified by plaintiffs solicitor that the case is urgent 2. Application is made by EX- PARTE SUMMONS supported by an AFFIDAVIT Contents of affidavit [Order 29 Rule 1 (2A) The affidavit must contain a clear and concise statement of: a) Facts giving rise to the claim against defendant

2. The principle in granting interim/interlocutory

injunctions are laind down by the House of Lords in American Cyanamid Co v Ethicon Ltd and followed in Malaysian cases ex: Mohammed Zainuddin v Yap Chee Seng as: a) Whether there is a serious question to be tried. The court will look at it prima facie. If there is no serious question to be tried then no injunction will be granted.
4

Civil Procedure II: Ekin Kasim Ragu b) Whether damages are sufficient to compensate plaintiff. If damages are sufficient to compensate plaintiff, then no injunction will be granted c) Balance of hardship: if, by not granting the injuction, plaintiff suffers more hardship than defendant, then an injunction will be granted. d) Plaintiff must undertake as to damages.
2. In Evercrisp Snack Products v Sweeties Food

Industries, the court did not grant the interlocutory injunction because plaintiff had delayed his application and gave no satisfactory explanation.

3. In Haji Wan Habib v Datuk Patinggi Haji Abdul Taib

Mahmud, the Supreme Court said that an injunction is only a discretionary remedy and should not be available to those who sleep on their rights. FORM OF ORDER AND DURATION 1. An order for an interlocutory injunction must be in FORM 58 [Order 29 Rule 1(4)] 2. The duration of an interim injunction obtained on an ex-parte application is 2 weeks from the date on which it is granted [Order 29 Rule 1(2B)]

SERIOUS QUESTION TO BE TRIED In Keet Gerald Francis John v Mohd Noor b Abdullah, the Court of Appeal (Gopal Sri Ram JCA) said that: To decide whether there is a serious question to be tried, the court looks at the totality of facts presented and decides whether there are bona fide issues in the affidavit which are serious enough to merit a trial.

APPLICATION MUST BE PROMPT 1. Delay may be calculated to throw considerable doubt upon the reality of his alleged injury Lord Chelmsford LC in Ware v Regents Canal Co

3. To extend plaintiffs ex-parte injunction, plaintiff has to show urgency 4. If plaintiff applies by inter parte summons, then it must be served on defendant

Civil Procedure II: Ekin Kasim Ragu UNDERTAKING AS TO DAMAGES CASE: Keet Gerald Francis John v Mohd Noor b Abdullah Plaintiff must make an undertaking as to damages for the interim injunction against defendant should plaintiff lose the case. However, if the injustice to plaintiff is so manifest, the court may dispense with the undertaking as to damages. c) Assessment of damages : damages can be assessed or plaintiff cannot pay damages if defendant wins or d) Suppression of material facts.

DEFAMATIONS ACTIONS
1. In defamation actions, the court also has to use the

principles in Keet Gerald Francis John to decide whether an interim injunction shoud be given

FAILURE TO COMPLY If defendant fails to comply with the interlocutory injunction, then it amounts to contempt of court.

2. If, on the facts, it shows that defendants statement may amount to defamation which would cause hardship to plaintiffs reputation, then an injunction will be given Woodward v Hutchins

GROUNDS FOR DISCHARGE Defendant can apply to set aside the injunction on ground of a) No serious question to be tried or b) Balance of hardship is in defendants favour or

PRESERVATION OF PROPERTY 1. The court may, if it thinks just, make an order for the detention, preservation or inspection of any property which is the subject matter of teh action and authorise any person to enter that property [Order 29 Rule 2]
6

Civil Procedure II: Ekin Kasim Ragu 2. However, this order [Order 29 Rule 2] will not be made if defendant can show proof of possesion Niino & Co Ltd v Kow Lup Kai
-

If plaintiff suppresses any material facts, then the court has the discretion not to grant the injunction Noor Jahan v Md Yusoff

EX -PARTE APPLICATION TO STOP MEETINGS 1. An ex-parte application cannot be used to stop the holding or progress of a meeting of a body corporate, a society, an association, a union, an organisation, a club, or a body of person [Order 29 Rule 1(2C)]

2. It must be inter parte application

DISSOLUTION OF AN INTERLOCUTORY INJUCTION

-

The main action is not affected by res judicata or the issue of estoppel Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd

SUPPRESSION OF MATERIAL FACTS

7