What is involved in the alternative test that is a sliding scale minority approach to a preliminary injunction?
This approach is a variation on the traditional test in that for the first two elements, the one can be stronger and the other can be weaker, but the last two elements are still needed. This allows a stronger showing that the plaintiff will suffer irreparable harm if an injunction is not issued and a weaker showing that the plaintiff is likely to succeed on the merits, or vice versa. This considers all factors on balance to determine if they weigh toward granting relief or not.
What courts follow the alternative sliding scale minority approach for issuing preliminary injunctions?
California ninth circuit approach and the federal court system
What are the things that a P must show to establish the alternative sliding scale minority approach to a preliminary injunction?
- threshold issues: irreparable harm, public interest, serious question of liability
– there are serious questions on the merits of the balance of the hardships tips in the plaintiff’s favor, 0R
– what is the probability of success on the merits and more than a probability of irreparable harm without the order
What is a permanent injunction?
This gives final and complete relief.
What must be involved in a permanent injunction?
- it must be specific and definite
– relief must be narrowly tailored to fit specific violations
– it can only be as burdensome as necessary to put the P back in his rightful position before the misconduct occurred
Must a permanent injunction be indefinite?
No, but it can be.
How Is duration decided for a permanent injunction?
On a case by case basis and the plaintiFF is only given the amount of time needed to restore him to his rightful position
What is the level of specificity that is required for a permanent injunction?
It must be specific and definite, construed narrowly to be sure that people have clear notice about its requirements. You must be able to figure out from the four corners of the document what is required or forbidden. The document must be complete on its own, give clear notice about what they can and cannot do, and use an objective standard to see if it is specific enough
Who are the people that are bound by permanent injunctions?
Parties, their officers/agents/employees/attorneys, others in active concert with the first two. There must be an active ongoing relationship. If a non-party knowingly assists the defendant in violating an injunction, then he is bound
When can there be a modification of a permanent injunction?
If it would no longer be fair or just to continue to require obedience to the existing terms. Permanent injunctions are only permanent as long as the condition that produces the injunction stays in place. Once the condition ceases, the need for the injunction also ceases
What is the test for modification of a permanent injunction?
- there must be a clear showing of a substantial change in circumstances since the injunction was issued
– extreme and unexpected hardship in compliance with existing terms
– good reason for the court to modify
What would be an example of a reason that you would need to modify a permanent injunction?
If there is a change in the law
What are the elements to get a permanent injunction?
I’m Passing the Freaking Bar, Dammit!
– Inadequate legal remedy – Property right - Feasibility – Balancing of hardships - Defences
When discussing permanent injunction on an essay, how many of the elements would likely be a major discussable issue?
2-3
If a court is considering whether to have a permanent injunction, what will be the steps?
At a full hearing on the merits:
– the court first considers the liability theory
– then decides if the P should prevail on it
– then whether to issue a permanent injunction according to the elements
What is involved in the element of a permanent injunction that requires an inadequate legal remedy?
Established through:
- irreparable harm
- damage are too speculative
- multiple suits
- unique subject matter
- defendant is insolvent
What is involved in the element of a permanent injunction that requires a property right?
- CL: it used to be that a property right had to be involved before a plaintiff could get an injunction
– Modernly: many courts have abolished this, and those that have kept it have expanded it so that ANY property interest is considered a property right
What do you do with the property right element of a permanent injunction on an essay?
“This was a stronger requirement at common law than it is today because most jurisdictions have abolished it or interpreted it broadly enough that it isn’t a major concern because any interest is considered a property right.”
What is involved in the element of a permanent injunction that requires feasibility?
It must be feasible for the court to issue and enforce this decree
What are the two components of the element of a permanent injunction for feasibility?
– jurisdiction: the court must have jurisdiction over the parties and the property
– enforcement: if it is impractical for the court to enforce the decree, they will not issue an injunction. This is mandatory versus prohibitory injunctions (courts do not like ongoing monitoring)
If a defendant is constantly throwing loud parties late at night and the neighbour brings a nuisance claim seeking an injunction, what type of injunction is the court likely to issue?
They prefer ordering prohibitory injunctions that stop the defendant from having parties at certain decibels or hours
What is involved in the element of a permanent injunction that calls for balancing of the hardships?
The court weighs the harm to the plaintiff if the injunction is not issued against the burden on the defendant if it is issued and only issues and injunction if the harm to the plaintiff outweighs the burden on the D
If a defendant accidentally built an addition on 6 inches of the neighbour’s property, and the neighbour wants an injunction to have it removed, why is the burden on the defendant high?
Because he must knock down the whole room, and the harm to the neighbour is small, it’s just 6 inches, so there would be no injunction. The plaintiff can still get damages for the market value of the property that defendant encroached on, but the element of balancing of the hardships would probably weigh in favor of the defendant
What is the wilfulness exception to the element for a permanent injunction that calls for the balancing of hardships?
If the defendant’s act is willful, there is no need for balancing and this element is just ignored
