Chapter 19 - Interlocutory Injunction

Question 1

INTERLOCUTORY INJUNCTION

Overview

Answer 1

1) The law
2) Interlocutory prohibitory injunction
3) Interlocutory mandatory injunction

Question 2

INTERLOCUTORY INJUNCTION

The law

Answer 2

O.29

Question 3

INTERLOCUTORY PROHIBITORY INJUNCTION

The law

Answer 3

xx

Question 4

INTERLOCUTORY PROHIBITORY INJUNCTION

The law

Answer 4

S.52 SRA

Question 5

INTERLOCUTORY PROHIBITORY INJUNCTION

Jurisdiction to grant

Answer 5

1) S.50 SRA

2) O.29

Question 6

INTERLOCUTORY PROHIBITORY INJUNCTION

Test to grant

Answer 6

American Cynamid v Ethicon:

1) Is there a serious question to be tried:

• the claim must not be frivolous or vexatious;
• the claim must has some prospect of success, but not necessarily prima facie prospect of success.

2) Where does the balance of convenience lie:
- the harm that the injunction would produce by its grant is weighed against the harm that would result from its refusal.
3) Will damages be adequate to compensate for P’s losses if injunction is refused:

• Damages will NOT be adequate if:
• P’s loss is not financial, i.e. nuisance.
• P’s loss cannot be quantified with precision.
• D has not assets to pay for the damages.

4) Where does the balance of hardship lie:
- As long as there is no obvious imbalance, Court will grant the injunction to preserve status quo.

Question 7

INTERLOCUTORY PROHIBITORY INJUNCTION

Test to grant

Answer 7

Keet Gerald Francis v Mohd Noor, ref. to American Cynamid v Ethicon:

1) Bona fide issue to be tried:

• No determination based on the merits of the claims or any defence to it;
• Suffice if he identifies with precision the issues raised on the joinder & decides whether it is serious enough to merit on trial.

2) Balance of justice:

• weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal.
• He is entitled to take into account, inter alia, the relative financial standing of the litigants before him.
• In appropriate cases, court may require P to provide an undertaking for damages and secure his undertaking by a bank guarantee.

3) Exercise of discretion of discretionary relief:

• He would be entitled to take into account all discretionary considerations & possible alternative discretionary remedy;
• i.e. delay in making the application, whether damages

Question 8

INTERLOCUTORY PROHIBITORY INJUNCTION

Injunction in defamation actions

Answer 8

The New Straits Times Press (M) Sdn Bhd v AirAsia Berhad:

• The test in Keet Gerald does not apply to defamation actions.
• The common law has always been cautious about granting an interlocutory prohibitory injunction in defamation actions.
• The primary reason is that such an injunction would stifle free speech which is regarded as a sacrosanct fundamental liberty;
• Accordingly, the court would only grant an interlocutory injunction where:

1) the impugned statement is unarguable defamatory;
2) there are no grounds for concluding the statement may be true;
3) there is no other defence which might succeed; and
4) there is evidence of an intention to repeat or publish the defamatory statement.

Question 9

INTERLOCUTORY PROHIBITORY INJUNCTION

Injunction in defamation actions

CA, 202

Answer 9

Tony Pua Kiam Wee v Najib Razak:

• An interlocutory injunction to restrain the circulation or publication of purported Defamatory material which has direct nexus to the public and freedom of speech under art. 10 of the Federal Constitution is rarely given unless the language used is grossly scandalous and not related to the truth or falsity of the statement.
• “Scandalous” generally refers to matters which improperly causes a derogatory light on someone, usually a party to the action, with respect to moral character or uses repulsive language.
• The sole question is whether the matter alleged to be scandalous [w]ould be admissible in evidence to show the truth of any allegation in the [p]leading which is material with reference to the relief prayed.
• Thus, the threshold of scandalous statement is extremely high in contrast to that of Defamation.
• In Defamation, the version of the defendant may be true or untrue.
• However, when the allegation is said to be scandalous, it must be of severe nature to meet the threshold for injunction under the jurisprudence related to Defamation read with art. 10 of the Federal Constitution.
• Thus, the threshold to seek an injunction for Defamation when art. 10 of the Federal Constitution is involved with regard to any statement intended in matters related to public interest is extremely high.
• OTF, words such as Criminal, thief, kleptocrat, political rowdy, etc against politicians or person holding public office in many places in the Commonwealth countries where Corruption index is high will not meet with the threshold to obtain an interlocutory injunction when a cause of action is mounted on Defamation.
• However, if such words are used against private person where the public interest is not involved, the court may grant an injunction but usually it will be slow in granting an injunction as Defamation suit is related to compensation for damage to reputation and truth is a complete defence.
• The court needs to weigh the affidavit evidence as the justice of the case may demand

Question 10

INTERLOCUTORY MANDATORY INJUNCTION

Test for mandatory injunction

Answer 10

1) Timbermaster Timber Complex (Sabah) Sdn Bhd v Top Origin Sdn Bhd:

Applicant will have to show that:

• he has an unusually strong & clear case;
  there are special circumstances;
• he has a higher degree of success at the trial of his action.

2) Gibb & Co v Malaysia Building Society:

To grant a mandatory injunction:

• The case must be unusually sharp & clear;
• The court must be satisfied that there is a higher degree of assurance that at the trial a similar injunction would be granted.

Question 11

INTERLOCUTORY MANDATORY INJUNCTION

Rationale for higher test

Answer 11

ESPL (M) Sdn Bhd v Radio Engineering Sdn Bhd:

• the grant of an interlocutory mandatory injunction would have had the effect of granting P his final relief.
• Where the mandatory injunction does not have that effect, then P is not required to cross the higher threshold in Timbermaster and Gibb but merely the threshold in Keet Gerald Francis.