6. The trial has not yet commenced but the defendant's wrongdoing has already caused some damage to the plaintiff. What can the plaintiff do to stop the defendant's wrongdoing in the meantime?
Sometimes, the plaintiff will seek a court order at the trial either compelling the defendant to take specified steps (known as a "mandatory injunction") or restraining him from taking specified steps (known as a "prohibitory injunction"). These two types of injunction orders, if granted by the court, may permanently bind the wrongdoer/defendant. However, the case may take several years to reach court for a final settlement. By the time it comes to trial, the defendant's alleged wrongdoing may have already caused damage to the plaintiff. In such a case, the plaintiff may consider applying for an interlocutory injunction (see below).
(Note: Application for the above permanent injunction orders must be made by way of writ of summons. Due to the complexity of the application procedures, you should seek legal advice before making such an application.)
Interlocutory injunction (a temporary court order)
With a view to avoiding the potential injustice of such situations, the court has the power to make a provisional order before trial to regulate the position between the parties pending the trial. This order is called an "interlocutory injunction", and is usually a temporary version of the type of injunction the plaintiff will seek at the trial.
An application for the grant of an interlocutory injunction must be made by motion or summons. The application must be supported by an affirmation or affidavit setting out the facts giving rise to the cause of legal action against the defendant, the facts giving rise to the claim for injunctive relief, and the relief sought.
However, if the case is urgent, such application may be made ex parte (i.e. without giving notice to the defendant) supported by an affidavit or affirmation. If the application is made ex parte, the plaintiff must disclose to the court all facts which are important to the proceedings. It is advisable to read the Judiciary's Practice Direction 11.1 (Ex Parte, Interim and Interlocutory Applications for Injunctions) carefully for details of the application procedure to be followed.
Generally, the court will grant an interlocutory injunction if the plaintiff can show that:
- there is a serious question to be tried (i.e. the claim must not be frivolous or vexatious and must have prospect of success); and
- the balance of convenience lies in favour of granting the injunction.
In determining where the balance of convenience lies, the court will take all relevant circumstances of the case into account (e.g. the importance of the preservation of the existing situation, the relative strength of the parties' respective cases, etc). In particular, it will ask whether damages (monetary compensation) are an adequate remedy for the plaintiff and whether the defendant is able to pay the compensation.
If "yes", the injunction will be refused.
If "no", the court will next consider whether the giving of an undertaking as to damages by the plaintiff is adequate protection for the defendant and whether the plaintiff is able to honour such an undertaking. If the answer is "yes", the court will grant an interlocutory injunction.
(Note: The undertaking as to damages is the plaintiff’s promise to pay the defendant compensation if the plaintiff later fails to prove that he is entitled to such an injunction order.)
A defendant in such a case must note that wilful failure to comply with the terms of an injunction order may lead to a sentence of imprisonment.