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Granting injunctions

The latest episode in the saga affecting our Royal Barbados Police Force continues to play out in the media with the Commissioner of Police being restrained essentially from promoting anyone until further court proceedings are finally determined.

Against that backdrop we take this opportunity to examine the principles relating to the grant or refusal of injunctions by the Supreme Court.

An injunction is defined in Black’s Law Dictionary, 7th Edition as “a court order commanding or preventing an action”. There are various sub-definitions, including those relating to mandatory injunctions, quia timet injunctions and interlocutory injunctions.

The jurisdiction of the court to grant an injunction is derived from the Supreme Court of Judicature Act, Cap. 117A of the Laws of Barbados which provides at section 44 that the High Court may “grant a mandatory or other injunction … where it appears to the court to be just or convenient to do so for the purposes of the proceedings before it; and, if the case is one of urgency, the court may grant a mandatory or other injunction before the commencement of the proceedings”.

Pursuant to section 45 of the act the court may grant the injunction on such terms and conditions as it thinks fit.

The person claiming the injunction must be the person entitled to the right which the injunction seeks to protect. Claimants are not entitled to bring applications for injunctions unless the breach affects or will affect them personally. Where some public right is sought to be protected the Attorney General is the person entitled to bring the proceedings or must consent to the institution of the proceedings by some other individual who wishes to make the claim.

In order to obtain an injunction the claimant must in essence convince the court of the following:

1. That he has a legal right which is capable of being enforced; and

2. That the defendant has infringed this right and that damage has resulted or will result; or

3. That the defendant has infringed this right which has caused damage and will continue to infringe the right unless restrained by the court.

4. That damages (money compensation) would not be an adequate remedy for the breach of the right.

Section 46 of the act provides that “where a court has jurisdiction to entertain an application for an injunction…, it may award damages in addition to or in substitution for an injunction”. It is therefore a matter of discretion for the court as to whether damages should be granted instead of the injunction.

Generally, as set out in the case of Jaggard v Sawyer [1995] 2 All E.R. 189, the court will have regard to the extent of the damage or injury caused, whether the amount of the damage can be estimated in terms of money and if the grant of the injunction would be oppressive to the Defendant.

Where damages are awarded by the court instead of the injunction then the claimant’s right is extinguished. As per the case of Redland Bricks Ltd. v Morris [1969] 2 All E.R. 576, the cost will be calculated by the court having regard to the evidence of the parties as to the nature and extent of the damage and what is required to rectify it, if in fact it is capable of rectification.

An application for an injunction may be defended by showing amongst other things that the injunction would be useless, that repetition of the offence is highly unlikely, that money compensation would be an adequate remedy, or that the court has no power in the circumstances to grant the injunction sought.

The court may also consider whether the claimant was prompt in securing his rights on the basis that delay with knowledge may amount to acquiescence on the part of the claimant. Where the claimant’s right has already become statute-barred (the time allowed by law for filing the claim has expired) the injunction will not be granted.

The wording of the injunction as framed in the claim must be certain or it must be abundantly clear to the defendant exactly what he is required to do or to refrain from doing. It must also be clear as to the time at which the order for the injunction takes effect.

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