EQUITABLE REMEDIES
Equity has developed a variety of remedies, including: injunction; specific performance;
rescission; delivery up; to account; rectification; discovery; appointment of receivers; ne exeat
regno; declarations; and estoppels. Some view equitable tracing as a form of ‘remedy’ and it
has even been argued that the constructive trust may be used as a remedy.
The injunction and specific performance share the unusual characteristics of equitable
remedies. They are:
discretionary, unlike damages, the main common law remedy, which is of right.
not usually granted where the common law remedy of damages is adequate.
Granted lin personam. (Note however, that the tracing, is not in personam, but in rem.
Injunctions
An injunction is a court order to another to do or restrain from doing a particular act. It has
been used in numerous situations, such as to restrain the commission of a nuisance, trespass,
libel and a breach of contract, breach of confidence or of European Community law. It has
been used to stop a person from leaving the jurisdiction, from harassing, molesting, or from
committing a public wrong. The list is not exhaustive.
Courts of equity have long had discretionary power to grant injunctions. But the court will
exercise its discretion according to well-established equitable principles. Today the Senior
Courts Act 1981, replacing the Judicature Acts and other subsequent legislation, empowers the
High Court to grant an injunction. Section 37 (1) states:
“The High Court may by order (whether interlocutory or final) grant an
injunction…..in all cases in which it appears to the court to be just and convenient to
do so”.
Section 38 of the County Courts Act 1984 as amended by the Courts and Legal Services Act 1990
enables the County Court to make the same orders as the High Court but it cannot make a
freezing injunction or search order.
Types of injunctions
An injunction may be prohibitory (forbidding a particular act) or mandatory (ordering the
defendant to do a particular act). Until recently, injunctions could also be classified as
perpetual or permanent (following the final determination of the rights of the parties) or
interlocutory, now called interim. An interim injunction is issued pending determination of
, rights at trial. In addition, a quia timet injunction can be obtained, where the claimant fears
that damage could occur. There are also two important sub-types of (usually) interim
injunction: the freezing injunction and the search order.
Super Injunctions- Type of injunction that prevents publication of information that is in issue
and also prevents the reporting of the fact that the injunction exists at all. (It prevents a person
who has been given an injunction from disclosing that he has been given an injunction).
Note: Difference btw mandatory injunction and specific performance is that specific
performance requires the existence of a contract to be enforced
The Civil Procedure Rules
The Civil Procedure Rules1998, which came into force on 26thApril, 1999 changed the names
applied to different types of injunctions (Rule 25). An interlocutory injunction became an
interim injunction, a Mareva injunction is now known as a freezing injunction and an Anton
Piller order is now referred to as a search order.
Rule 1 states that the overriding objective of the rules is to enable the court to deal with cases
justly. The rule explains that “dealing with a case justly” includes, in so far as it is possible:
Ensuring that the parties are on an equal footing
Saving expense
Dealing with the case in ways which are proportionate:
- to the amount of money involved.
- to the importance of the case
- to the complexity of the issues, and
- to the financial position of each party.
Ensuring that it is dealt with expeditiously and fairly, and
Allotting to it an appropriate share of the court’s resources, while taking into account the
need to allot resources to other cases.
Current academic opinion is that previous case law on injunctions will not particularly be
affected by the Rules but that courts will, in addition to following well settled principles, need
conspicuously to take into account the overriding objective in Rule 1.
Equitable principles applicable to all injunctions.
Equity has developed a variety of remedies, including: injunction; specific performance;
rescission; delivery up; to account; rectification; discovery; appointment of receivers; ne exeat
regno; declarations; and estoppels. Some view equitable tracing as a form of ‘remedy’ and it
has even been argued that the constructive trust may be used as a remedy.
The injunction and specific performance share the unusual characteristics of equitable
remedies. They are:
discretionary, unlike damages, the main common law remedy, which is of right.
not usually granted where the common law remedy of damages is adequate.
Granted lin personam. (Note however, that the tracing, is not in personam, but in rem.
Injunctions
An injunction is a court order to another to do or restrain from doing a particular act. It has
been used in numerous situations, such as to restrain the commission of a nuisance, trespass,
libel and a breach of contract, breach of confidence or of European Community law. It has
been used to stop a person from leaving the jurisdiction, from harassing, molesting, or from
committing a public wrong. The list is not exhaustive.
Courts of equity have long had discretionary power to grant injunctions. But the court will
exercise its discretion according to well-established equitable principles. Today the Senior
Courts Act 1981, replacing the Judicature Acts and other subsequent legislation, empowers the
High Court to grant an injunction. Section 37 (1) states:
“The High Court may by order (whether interlocutory or final) grant an
injunction…..in all cases in which it appears to the court to be just and convenient to
do so”.
Section 38 of the County Courts Act 1984 as amended by the Courts and Legal Services Act 1990
enables the County Court to make the same orders as the High Court but it cannot make a
freezing injunction or search order.
Types of injunctions
An injunction may be prohibitory (forbidding a particular act) or mandatory (ordering the
defendant to do a particular act). Until recently, injunctions could also be classified as
perpetual or permanent (following the final determination of the rights of the parties) or
interlocutory, now called interim. An interim injunction is issued pending determination of
, rights at trial. In addition, a quia timet injunction can be obtained, where the claimant fears
that damage could occur. There are also two important sub-types of (usually) interim
injunction: the freezing injunction and the search order.
Super Injunctions- Type of injunction that prevents publication of information that is in issue
and also prevents the reporting of the fact that the injunction exists at all. (It prevents a person
who has been given an injunction from disclosing that he has been given an injunction).
Note: Difference btw mandatory injunction and specific performance is that specific
performance requires the existence of a contract to be enforced
The Civil Procedure Rules
The Civil Procedure Rules1998, which came into force on 26thApril, 1999 changed the names
applied to different types of injunctions (Rule 25). An interlocutory injunction became an
interim injunction, a Mareva injunction is now known as a freezing injunction and an Anton
Piller order is now referred to as a search order.
Rule 1 states that the overriding objective of the rules is to enable the court to deal with cases
justly. The rule explains that “dealing with a case justly” includes, in so far as it is possible:
Ensuring that the parties are on an equal footing
Saving expense
Dealing with the case in ways which are proportionate:
- to the amount of money involved.
- to the importance of the case
- to the complexity of the issues, and
- to the financial position of each party.
Ensuring that it is dealt with expeditiously and fairly, and
Allotting to it an appropriate share of the court’s resources, while taking into account the
need to allot resources to other cases.
Current academic opinion is that previous case law on injunctions will not particularly be
affected by the Rules but that courts will, in addition to following well settled principles, need
conspicuously to take into account the overriding objective in Rule 1.
Equitable principles applicable to all injunctions.
