UNDOUBTEDLY, you have heard the term “injunction” before, but do you know what it really means? Put simply, an injunction is a court order which either prohibits a person from doing a specific thing (a prohibitory injunction) or directs a person to take a specific action (a mandatory injunction). An injunction can be granted before the trial of the case to which it relates or it can be granted after. When it is made before, it is an interim (temporary) injunction and when made after trial, it is typically a permanent injunction.

Permanent injunctions, despite the finality implied by the name, are the simpler of the two. They are the result of a court having heard the full evidence at trial and deciding that the injunction is what is required for the dispute to be resolved justly. For example, a court may impose a permanent injunction preventing a neighbour from encroaching on the boundary of your land or an injunction requiring the demolition of a structure that has already encroached. The permanent injunction forms part of the court’s final judgment on the case.

Interim injunctions, on the other hand, are more complex — and more commonly encountered. They are needed when the court is not yet able to hear the full evidence at trial but needs to act urgently to prevent a potential injustice from occurring, despite not yet knowing which party should win the case in the end. Using our previous example, if you observe that a neighbour has begun constructing a building which you believe violates your property boundaries, you may apply for an injunction to halt the construction until the court can decide whether the boundaries have been or will be violated. The rationale is straightforward: If you are correct, then a breach of your property rights is imminent and it is better to stop the construction now and preserve the status quo for trial than to let it continue and later require the defendant to incur the expense of demolishing the newly built structure.

The seminal case of American Cyanamid Co v Ethicon Limited [1975] 1 All ER 504, is credited with the current framework for the law on interim injunctions. In that case, the court said there are two main questions to be asked when deciding whether to grant an injunction:

1. Is there a serious issue to be tried?

2. Does the balance of convenience favour granting the injunction?

The answer to both questions must be “Yes” in order for an injunction to be granted. The first question seeks to ensure that the underlying dispute is not a frivolous one and is worth the court’s intervention. If there is no serious issue to be tried then the court ought not to waste time trying to preserve the status quo for a trial that should not take place. If, however, the court is satisfied that serious issues exist, it will move on to the second question – does the balance of convenience favour granting the injunction?

The “balance of convenience” requires the court to determine which course of action (granting or refusing the injunction) carries the least risk of causing irreparable or irreversible harm. Remember that interim injunctions are temporary and are meant to put a pause on things until the court can decide, after a trial, which party should succeed. It is therefore possible that an injunction may be granted at an early stage, only for the court to later conclude that it should not have been. In such circumstances, any harm caused to the defendant by the injunction must, as far as possible, be capable of being reversed or compensated for. According to the aforementioned American Cyanamid case, a key factor when examining the balance of convenience is whether an award of monetary damages will be adequate for either party. If a monetary award after trial would be sufficient remedy for the claimant (as opposed to an injunction before trial), then the court should not grant the injunction. This is because an injunction, by its nature, impinges on a defendant’s freedom to do as they please, and hampering a person’s freedom of action should not be allowed when other viable options are available such as an award of damages. Consequently, if the claimant can be adequately compensated after trial, there is no need to interfere with the defendant’s freedom in the interim.

Conversely, if damages would not adequately compensate the claimant, the court must next consider the position of the defendant. More specifically, the court examines the hypothetical scenario in which the injunction is granted but it later turns out after trial that the injunction was wrongly granted. Is a monetary award sufficient to compensate the defendant for being prevented from doing what she was entitled to do in the first place? If money is an adequate remedy on the defendant’s side but not an adequate remedy on the claimant’s side, then the balance of convenience will generally favour granting the injunction. This is done on the condition that the claimant undertakes to pay damages to the defendant if it is later found that the injunction should not have been granted.

The law of interim injunctions gets more nuanced beyond this foundation,but at its core, the court is engaged in a careful balancing exercise — seeking to prevent injustice while avoiding unnecessary interference with a defendant’s freedom of action, all without yet knowing what will ultimately be proven at trial. If you are or your company is facing an urgent situation involving an imminent and potentially irreversible breach of your rights, an injunction may be the appropriate remedy.

At the very least, you are now better equipped to understand what the term means and to form your own view on when such orders should be granted or refused.

Jamaiq Charles is an associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Jamaiq may be contacted via Jamaiq.charles@mfg.com.jm or through the firm’s website at www.myersfletcher.com.

The Supreme Court in Kingston, where judges weigh urgent applications, including injunctions, to preserve the status quo ahead of trial.