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Perpetual Injunctions: Special Circumstances ( Damages as an adequate…
Perpetual Injunctions: Special Circumstances
PRIMA FACIE
If P proves an actual or anticipated violation of one of his rights, he is
prima facie
entitled to a perpetual injunction
A prima facie entitlement is one which, subject to further scrutiny or unforeseen circumstances, seems good
DISCRETIONARY: However, the injunction is a discretionary remedy
The essence of discretion is that P, who proves a prima facie entitltement to relief, may, nevertheless, be refused that relief
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd
It is... well settled that if A proves that his proprietary rights are being wrongfully interfered with by B and B intends to continue his wrong, the A is prima facie entitled to an injunction
HE WILL BE DEPRIVED OF THAT REMEDY ONLY IF SPECIAL CIRCUMSTANCES EXIST, INCLUDING THE CIRCUMSTANCE THAT DAMAGES ARE AN ADEQUATE REMEDY FOR THE WRONG THAT HE HAS SUFFERED
Damages as an adequate remedy
Shelfer v City of London Electrical Lighting Co
Facts: D carried out lighting works that caused structural damage to a nearby public house
P who held property under a lease caused annoyance and discomfort
Trial judge held P should be confined to a remedy in damages
HELD: C of A- disagreed- set down following principles
If the injury to the P's legal rights is small
and is one which is capable of being estimated in money
3, and is one which can be adequately compensated by a small money payment
and the case is one in which it would be oppressive to the defendant to grant an injunction
then damages in substitution for an injunction may be given
HOWEVER: stressed
just because D is ready, willing and able to pay damages should not be a factor that should persuade the court to refuse to grant an injunction
D may not seek court's assistance in what would effectivley amount to a compulsory purchase of P's rights
Express Newspapers Ltd v Keys: P sought an injunction restraining certain trade unions from inducing their memebrs to breach their contracts of employment with P
HELD: just because unions could afford to pay damages did not mean damages would be an adequate remedy for P
The injunction invented and developed in response to PERCEIVED INADEQUACY OF DAMAGES as remedy
condition precedent: P would not be compensated adequately for the actual or anticipated violation of his rights by an award of damages
Evans Marshall and Co v Bertola
: 'is it just, in all the circumstances, that P should be confined to his remedy in damages?'
e.g. breach of confidence- once secret disclosed, it could not be taken back
Fishenden v Higgs
: Just because one of four Shelfer principles not satisfied did not necessarily mean na injunction would have to be granted
Kennaway v Thompson
:
P obtained injunction to restrain a nusiance that was caused by power-boat racing on lake near her home
Lawton LJ: Shelfer princples were binding on him
case involving continuing nuisance, sucha s the one before him, tjhe jurisdiction to award damages in lieu of an injunction should be exercised v sparingly
Patterson v Murphy
FACTS: Ps sought an injunction restraining Ds from carrying out blasting and quarring activiies on land beside P's house
HELD: HC- serious nuisance established
Adopted Shelfer principles in Irish law
the Conduct of the P may be such as to disentitle him to an injunction
The mere fact a wrongdoer is able and willing to pay for the injry he has inflicted is not ground for substituting damage
P engaged or continues, or is threatening to engage in unfair/unreasonable conduct
He who come to equity must come with clean hands
Not necessary to prove fraud on P's part
BUT the 'dirty' conduct must have been related o the subject matter of the dispute
e.g. *Argyll v Argyll: P''s adulter did not entitle her former husband to breach confidences
' A person coming to equity for relief must come with clean hands,
but the cleanliness required is to be judged in relation to the relief that is sought
Curust Financial Services v Loewe-Lack-Werk Otto
P was exclusive distributor of D1's rust primer in Ireland
= Parties fell out and supply ceased
= P entered into an agreement with third party for supply to the P of rust prier, which was sold under D1's name
D1 agreed with D2 that latter would sell its rust primer in Ireland
P sough an injunction restraining D1 from supplying D2
D1 argued by subcontracting the manufacture of the paint otherwise than in accordance with the contract (w/o written consent of D1) P had failed clean hands test
HELD: Injunction equitable remedy, court has discretion when person comes to court otherwise than with clean hands to refuse injunction
clean hands must necessarily invole an element of
*turpitude
and could not be equated with a mere breach of contract
BOTH PARTIES GUILTY OF MISCONDUCT
*Meridian Communications v Eircell: SC said that, where there has been misconduct by both parties, the misconduct of the D may balance that of the P
HELD: since neither party was without fault, the Court would not refuse the injunction sought
He who seeks equity must do equity
Chappel v Times Newspaper
:
Facts: Ps members of Trade union
Sought injunction to restrain D from terminating their contracts of employment
C of A refused application, as Ps failed to demonstrate tehy intended to abide by their contracts of employment and give undertakings not to engage in disruptive pracitce
A CONTRACTING PARTY WHO SEEKS EQUITABLE RELIEF MUST BE READY AND WILLING TO DO HIS PART
P delayed in seeking injunctive releif
Laches
DELAY DEFEATS EQUITY
unreasonable dealy on teh aprt of teh P in commencing/prosecuting proceedings
in view of teh delay, it must be unjust ot grant the relief sought
Lennon v Ganly
: Irish rugby team announced it would be touring SA during time of aparteid
Before the tour was due to commence, teh P sought an injunction to restrain tourt
-HELD: Having regard to the period of the time that elapsed between teh announment of the tour and P's application HC refused
Laches successfully envoked
Newport Association Football Club v Football Association of Wales
; Court held that a delay of two years in seeking an interlocutory injunction was not unreasonable because of mitigating factors
P had not been standing still for 2 years
But had been seeking alternative ways of resolving the problems
Acquiescence
Spry; 'an assent or lying by in relation to the acts of another person
in view of the assent or lying by and consequent acts it must be unjust in all the circumstances to grant the specific relief that is in question
Archbold v Scully:
If a party, who could object, lies by and knowingly permits anor to incur an expense in doing an ct under the beleif it would not be objected to, and so a kind of permission may be said to be given to anor to alter his condition, he may be said to acquiesce'
MAY BE INFERRED FROM LENGTHY DELAY
Shaw v Applegate
: D purchased certain property and covented not to use it as an amusement arcade
vendor assigned the benefit of the covenant to Ps
D started to install amusement machines
Three years later P sought to restrain the breach of covenant
HELD: Cof A held that to deprive the owner of a legal right of it on the ground of acquiescence it would have to be
dishonest
or
unconscionable
to seek to enforce it
HERE: P confused about whether D acting in breach of covenant
Could not be said that in seeking to enforce their contractual rights at time, Ps acting dishonestly
Ps acquiescence did not deprive them of any remedy at all
But Ps were confined to a remedy in damages, having regard to goodwill built up by D over the years and the expenditure incurred by him
O'Hare v Dunndalk Racing: P sought injunction to restore his pitch at the racecourse, 7 years after the issues complained of had occured
3rd party now operating a pitch at that location
HELD: No injunction would be granted s the delay in applying was no prejudicial to another party
Awarded damages for breach of contract
Granting the injunction would cause D or a third party undue hardship
DESPITE BELLEW CASES WHERE COURTS HAVE LOOKED BEYOND RIGHTS OF PARTIES TO LITIGATION
Dun Laoghaire Rathdown CC v Shackleton
: HC in granting an injunction preventing an arbitrator from hearing a claim for compensation, said it had beeen influenced by public interest considerations
NOTE- not restricted to private rights
ENGLAND: Conflicting authorities
Miller v Jackson
: Denning refused to grant injunciton to prevent cricket balls from local club flying inton P's Garden
Recognised community interest in playing cricket
Awarded damages instead
Criticism: allowed the cricket club to buy P's rights
Kennaway v Thompson:
Court indicated its disapproval of Lord Denning's approach
Similar args made regarding public recreational interest in motor boats being available for racing on a lake
Held; C of A rejected- adopted simialr apprach to Bellew- disregard public interest
Bellew Cememnt Ltd:
FACTS: an injunction sought to restrain quarrying
D sought to restrict the application on the gorund that the pulic inconvenience the injunction would cause
D was sole manufacturer of cement in Ireland
HELD: Majority of SC: Public interest irrelevant since this was a matter of private law
DISSENT: although public inconvenience could not justify the refusal of remedy for a nuisance, that was not to say it could not be taken into account in deciding
how
to remedy the nuisance
Difficulty v Impossibility in quantifying damages
Sheridan v Louis Fitzgerald Group ltd
RELIED ON CURUST
FACTS: P was a provider of catering services, and claimed to have entered into a lease with D to provide catering services in two of D's public houses
D disputed the existence of such an agreement
ISSUE: P sought mandatory injunction compelling D to permit P to carry on catering services in the pubs pending full hearing
HELD: REFUSED- held Damages= adequate remedy
P argued not adequate- loss in business that he could potentially incur as a result of a less proficient caretaker working on premises until the trial of action
HC REJECTED- relying on CURUST- regard could be had to loss up to the date damages are assessed and to probable loss that could occur subsequent to the date
P had to persuade court that, as a matter of probability, business as of that date was less than it would have been had he been operating it
Then entitled to damages to compensate him for losses that would accrue during whatever future period the court considered would be needed to enable th ebusiness to catch up to the position in which it would have bee, had P the opportunity to run it from beginning
Yeats v Minister for Posts and Telegraphs:
held that extreme difficulty in assessing damages means that damages would not be an adequate remedy
Curust v Financial Services Ltd v Loewe-Lack-Werk Otto
Difficulty, as distinct from complete impossibility, in the assessment of such damages should not, in my view, be a ground for characterising the awarding of damages as an inadequate remedy'
Lynch v Heath Service Executive
: FACTS: P dentists sought an injunction restraining the D from capping budget for a dental services scheme and claimed htey could go out of business pending the trial so damages were not adequate
HELD: Losses could still bee calculated and the Ps had not estab they were likely to sustan a loss which was incapable of being adequately remedied by damages award