Injunctions & Equity Jurisdiction

Injunctions and the Jurisdiction of Equity

• An injunction was issued on May 17, 2022, prohibiting anyone disrupting fuel sales to or from Shell petrol stations in England and Wales
• The injunction targets individuals associated with environmental protest campaigns

Beginnings: Common Injunctions

• Common injunctions were used to stay proceedings in courts of law, based on the court's equity jurisdiction to control parties
• Common injunctions were granted if common law judgments were partial or oppressive, or if a defense unavailable at common law existed
• Common injunctions were abolished with the passage of the Judicature Acts

Injunctions after 1873: Enshrined in Statute

• The Judicature Act 1873, s. 25(8), allowed injunctions if deemed just or convenient
• The Senior Courts Act 1981, s 37(1) (previously Supreme Court Act 1981), grants the High Court the power to issue injunctions if just and convenient

Forms of Injunctions

• Interim injunctions deal with civil procedure by balancing rights pending proceedings, and need a serious question to be tried and a balance of convenience
• Final injunctions enforce rights established at trial, like trespass or breach of covenant when damages are inadequate

American Cyanamid (1975)

• The case established that instead of proving a prima facie case, there needs to be a serious issue to be tried
• The courts should ask if damages would be adequate compensation, and if not consider the balance of convenience to maintain the status quo

Where “Time is of the Essence”

• Cases where time is crucial, like Hubbard v Pitt (1976), Cambridge Nutrition v BBC (1990) and trade union activity, require prompt action

Operation of Injunctions

• "Quia timet" injunctions are issued when there's fear of infringement of legal or equitable rights that haven't happened yet with strong possibility of future infringement
• Without notice injunctions are sought without notifying the defendant, while freezing orders (Mareva injunctions) are strong interlocutory injunctions and search orders (Anton Piller injunctions) concern evidentiary principles

Mareva Injunctions

• Mareva Compania Naviera SA v International Bulkcarriers SA (1975) established freezing orders
• Freezing orders prevent the removal of a defendant's assets from jurisdiction/dissipation and can extend to assets held by third parties
• The flexibility principle dictates courts should be flexible to stop defendants from thwarting enforcement of court orders

Anton Piller Injunctions

• Anton Piller injunctions involve the claimant having confidential information given by the defendant to manufacturers
• The defendant's permission is required to enter the premises to enable removal of documents if essential to the interests of justice
• The defendant should establish a strong prima facie case the defendant is liable, there is serious potential damage if the order isn't granted and there is clear evidence the items are in the defendant's possession with real possibility of destruction

Question: Are Injunctions “Equitable”?

• Injunctions are granted only to protect legal/equitable rights, are available when common law remedies are inadequate, operate in personam, and are discretionary
• According to Worthington, there is nothing irredeemably equitable about equitable remedies

What do we mean by “Jurisdiction"?

• Jurisdiction defines the power to speak in the name of the law
• The foundational authority asks the reason is given for authority?
• How/when will the authority be exercised? Is it limited by rules or discretionary?

Scope of jurisdiction of the Court to grant Injunctions

(historically)

• In Gee v Pritchard (1818), Lord Eldon refused jurisdiction over libel, and focused on protecting mother's property (copyright)
• The Senior Courts Act 1981 s37 reaffirmed the jurisdiction, which brought in the words ‘and final'

Scope of jurisdiction of the Court to grant Injunctions

(Restated)

• In Fourie v Le Roux (2007), the Court of Appeal discharged an injunction because improperly issued and had ‘no jurisdiction'
• Provided there is jurisdiction in personam, the court has jurisdiction to grant the freezing order

Civil Procedure Rules: Practice Direction supplement Part 25

• High Court Judges and any other Judge duly authorised can grant 'search orders' and 'freezing injunctions
• Masters and District Judges have the power to grant injunctions by consent, in connection with charging orders and appointments of receivers, and in aid of execution of judgments
• A Master or District Judge can vary or discharge an injunction granted by any Judge with the consent of all the parties

Use of Injunctions: “Persons Unknown”

• "Persons Unknown" or contra mundum injunctions are against the whole world, so they do not need to specify a defendant
• They're used in situations involving potential disclosure of private information or unlawful occupation of land
• Political problems are the scope of 'Persons Unknown', adequate notice, discrimination, interference with Article 10 rights

“Persons Unknown and newcomers"

City of London v Samede (2012) found the injunction to be compatible with the HRA Art 10

• Canada Goose UK Retail Ltd v Persons Unknown (2020) (Court of Appeal) application and appeal refused, and applies only to persons who had committed the unlawful acts by the time the injunction was granted

Newcomers, new injunctions?

• Wolverhampton CC vs Gypsies, Travellers and ors (2023), several Local Authorities applied for review of interim injunctions granted against Persons Unknown
• Canada Goose doesn't award final injunctions against persons unknown so that's what's different about this case?

Flexibility in Wolverhampton

• The court rejects the rigid distinction between final and interim injunctions that permeates the parties' submissions and the case law
• The court states “the injunction against newcomers is a wholly new type of injunction with no very closely related ancestor from which it might be described as evolutionary offspring"

Jurisdiction revisited in Wolverhampton [147-153]

• The court confirms that injunctions emerge from the jurisdiction of equity and there is no limiting rule besides 'just and convenient'
• The court says only a novel exercise of an equitable discretionary power is justified ‘”if certain criteria are met

Wolverhampton – “In Personam” vs “contra mundum”

• Equity acts in personam rather than in rem or contra mundum

A note about power...

• On whose behalf do we see powerful injunctions working as a techniqué of enforcement?
• Is equity assisting in maintaining the disparity of social power?

Emergence of statutory injunctions:

mid-to-late 20th century developments:

• Section 222 of the Local Government Act 1972 allows local authorities to prosecute or defend or appear in any legal proceedings and, and in the case of civil proceedings -Many other new statutory injunctions followed, eg in housing context such as antisocial Behaviour, Crime and Policing Act 2014

The Use of Injunctions: Privacy and superinjunctions

• A superinjunction prevents disclosure of the fact that the privacy injunction exists
• The problems with superinjunctions are Freedom of expression, Public interest, Legitimate expectation of privacy, Open justice and Parliamentary Privilege

Superinjunctions

• Terry (LNS) v Persons Unknown [2010] EWHC 119, the application was refused there was no real threat, hadn't established likelihood of success at trial
• The Master of the Rolls Committee on Superinjunctions (2011) saidThe unprincipled use of super-injunctions is of particular concern