Injunctions

Insight | April 2017

Injunction
Image: ‘The Smokers’ Rebellion’ by George H.Boughton

Within law, there are many types of legal injunctions across a number of different fields, and their purpose is one of prevention or denial of an action, or that of proximity to a party or place. In contract law there are mandatory (or negative) and prohibitory injunctions, while in civil litigation there are interim (also found in criminal law), anti-suit and freezing injunctions. Within family law there are non-molestation and occupation injunctions (or orders), whereas under tort a claimant can apply for either partial or temporary injunctive relief, as well as interim and super-injunctions (depending on the circumstances). In Equity and trust law there are also perpetual (or final) injunctions, along with quia timet injunctions.

The aim of this article will be to look at all of the above, while supporting each one with illustrative citations to help underpin their use, starting first with negative injunctions.

Mandatory injunctions

Often sought after the fact, the purpose of this injunction is to force by application, the party that has undertaken an act causing sufferance to the clamant, a liability to reverse the damage caused through new action. There are however, degrees of limitation to its use, as under certain conditions, the extent of work required to restore the balance may outweigh the priority of the claimant seeking redress.

An example of this is Charrington v Simons & Co Ltd, where after selling a portion of his land, the buyer breached the restrictive covenant by resurfacing an adjoining road, despite inherited limitations as to its operational height. When the applying the injunction, the previous judge set conditions upon its use that allowed the respondent to effectively trespass on his land when restoring the road to its intended level; a decision that caused further angst toward the appellant, and that was overturned to ironically set the injunction back into its proper effect. This was explained by Russell LJ, who explained:

“…the judge, in adopting the course which he did, travelled beyond the bounds within which discretion may be judicially exercised; for in effect he sought to force upon a reluctant plaintiff something very like a settlement involving operations by the defendant on the plaintiff’s land which must lead to greatly increased harm to his business as a condition or term of his obtaining a mandatory injunction should the works not prove a satisfactory solution.”

Prohibitory injunctions

While compelling in their purpose, prohibitory injunctions serve to prevent through inaction, and are often used to control the events that either surround a contractual relationship, or follow when the arrangement is dissolved. Typical scenarios range from former employees prevented from occupying similar positions within a particular radius, or from using their skills to benefit another in a competing field, through to sportsmen unable to play for specific rival teams for a determined period. The caveat within these restrictions is one of a right to live, and so any prohibitory injunction granted must not deny those relevant, the opportunity to work and live, inclusive to the terms afforded others in a similar position.

An example of this is Jaggard v Sawyer, in which damages in lieu were awarded to avoid the imposition of an injunction after completion of a second property upon land that contained restrictive covenants designed to deny such acts. While the defendants argued that attempts were made to explain their intentions, and that due care was shown during the building process, the appellants refused to accept damages, and moved instead to enforce an injunction that by now, was pointless and highly oppressive to the owners and potential tenants of the new house. This point was made clear by Sir Thomas Bingham MR, who noted:

“It was suggested that an injunction restraining trespass on the plaintiffs roadway would not be oppressive since the occupiers of No. 5A could use the other half of the roadway outside the plaintiffs house, but this would seem to me unworkable in practice, a recipe for endless dispute and a remedy which would yield nothing of value to the plaintiff.”

Interim injunctions

Found in at least three areas of law, these are often used to deny certain actions for a specific period, most often issued pre-trial, in order to preserve order while the parties prepare themselves for the hearing without interruption. That said, it is important that those seeking one are able to rely upon a substantive cause of action, as was explained by Lord Diplock in The Siskina, when he said:

“A right to obtain an [interim] injunction is not a case of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the [claimant] for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an [interim] injunction is merely ancillary and incidental to the pre-existing cause of action.”

It is also not uncommon for the High Courts to issue interim injunctions when criminal matters call, and this position was made clear when in Attorney-General v Chaudry, Lord Denning MR expounded:

“There are many statutes which provide penalties for breach of them; penalties which are enforceable by means of a fine or even imprisonment but this has never stood in the way of the High Court gaining an injunction. Many a time people have found it profitable to pay a fine and go on breaking the law. In all such cases the High Court has been ready to grant an injunction…”

Within tort there is legislative security offered through the Protection from Harassment Act 1997 which explains within s.3, that those seeking relief can apply for injunctions carrying criminal sanctions for non-compliance; as has been seen in celebrity and media related cases, including AM v News Group Newspapers Ltd, where an emergency interim injunction was ordered against a number of leading newspapers, after their photographers descended upon the home of a landlord that inadvertently let one of his properties out to a suspected terrorist; an act which then attracted unwanted and stressful press attention around the claimant’s private residence. The grounds for this restriction were outlined by Tugendhat J, who commented:

“Measures to ensure that respect is given to person’s home and family and family are required by ECHR Art 8 and Human Rights Act 1998 s.6. In so far as the order that I make prohibits disclosure of information, it is with a view to preventing interference with that right by intrusion or harassment, not preventing disclosure of information which is sensitive for any other reason.”

Freezing injunctions

Also known as a Mareva Injunction, this order is issued in relation to assets involved in a civil claim. The injunction will typically apply only to the value argued, and it prevents access by one party that might otherwise seek to remove or sell them for profit. While used to secure their presence during pre-trial and proceedings, the order cannot override the effects of liquidation, and those seeking claim may find themselves denied of success when judgment is made. An example of the strict criteria surrounding freezing injunctions (particularly without notice) was expressed by Neuberger J in Thane Investments Ltd v Tomlinson (No1), where he remarked:

“… the duty of a person seeking an order, and in particular an order which can have as substantial an effect as a freezing order, in the absence of the Defendant against whom it is sought, is strict and important. An order against a person in his absence, particularly when it is a freezing order, which is a very serious infringement of his rights and liberties, can only be justified on appropriately clear and strong facts and risks. It should only be granted in circumstances which provide maximum protection for the person against whom the order is to be made. The courts have frequently emphasised the importance of compliance with the various requirements of the Rules relating to the obtaining of without notice orders.”

Non-Molestation injunctions

Designed to provide victim protection within intimate or blood-related relationships, this injunction can be sought by the party involved, or under s.60 of the Family Law Act 1996 whereupon a third party can seek the court’s issue if those suffering are too afraid to request it. The purpose of this order is in the name, inasmuch as denial of physical access when used to molest, harass or threaten the claimant to the point of legal intervention through verbal abuse and unwarranted use of that person’s private property. The importance of this order was outlined by Wall J in G v F (Non-Molestation Order: Jurisdiction), where after the original court failed to grant protection to a single mother, it was overturned and expeditiously supported through the words:

“Part IV of the Family Law Act 1996 is designed to provide swift and accessible protective remedies to persons of both sexes who are the victims of domestic violence, provided they fall within the criteria laid down by section 62. It would, I think, be most unfortunate if section 62(3) was narrowly construed so as to exclude borderline cases where swift and effective protection for the victims of domestic violence is required.”

Occupation injunctions

Sometimes issued in conjunction with a non-molestation injunction, the occupation injunction confers power upon the court to prevent those in question from occupying a property. This can be used in both domestic abuse cases and also civil disputes surrounding property ownership or residency. As this injunction runs risk of serious restriction to individual rights, the circumstances surrounding its use must be fully evaluated to avoid counter claims by the affected party. This strict yet delicate approach was underlined by Lady Justice Black in Dolan v Corby, where she stressed:

“…it must be recognised that an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature.”

Super injunctions

Falling under the umbrella of interim injunctions, a super injunction reveals greater, yet highly focussed powers when preventing actions of third parties. Typically used to deny publication of potentially damaging material, this order can be issued without notice, and not only denies public access, but anonymises the applicants identities, making it an effective tool for public figures and corporate entities alike. The validity of this injunction was well explained by The Master of the Rolls in JIH v News Group Newspapers Ltd, where it was outlined:

“…the claimant’s case as to why there is a need for restraints on publication of aspects of the proceedings themselves which can normally be published is simple and cogent. If the media could publish the name of the claimant and the substance of the information which he is seeking to exclude from the public domain (i.e. what would normally be information of absolutely central significance in any story about the case who is seeking what), then the whole purpose of the injunction would be undermined, and the claimant’s private life may be unlawfully exposed.”

Perpetual (or final) injunctions

Unlike interim injunctions, these orders are issued at point of judgment, and therefore remain in effect for an unlimited period. An example of this is Law Society v Kordowski, in which a website designed to allow members of the public free expression of their disdain following direct experience with named solicitors, was challenged upon numerous litigious grounds. This case was one of a number of individual matters, and when moving to award final and indefinite removal of the site and future publications, Tugendhat J iterated that such injunctions were imperative when:

“The procedural remedy of representative proceedings, coupled with an injunction, may be the best that the law can offer at present to protect the public from the unjustifiable dissemination of false information about the suppliers of goods and services. It is also the means by which the court may protect its limited resources in time and judiciary from having to deal with large numbers of claims by different claimants against the same individual on the same or similar facts.”

Quia Timet injunctions

In much the same as mandatory injunctions serve to ‘undo’ the damage done, quia timet injunctions are anticipatory, in that their purpose is the prevention of potential future harm, that while proactive in design, relies upon compelling evidence to provoke court dispensation. The importance of overwhelming argument was made clear by Lord Dunedin in Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd, when he outlined:

“Any restraint upon that at the instance of the other party must consist of an injunction of the quia timet order. But no one can obtain a quia timet order by merely saying ” Timeo ” ; he must aver and prove that what is going on is calculated to infringe his rights.”

In closing, it must be noted that this is by no means an exhaustive list of injunctions; however it is hopefully detailed enough to provide a sound knowledge base when an understanding of their differences and relevance within case law is a priority. It may also pay to consider that in many instances there will always be degrees of overlap, as nothing in life is ever straightforward, and it is only through the investigative efforts of the judges that the attributable criteria can emerge.

Access to Justice

Insight | March 2017

Access to Justice
Image: ‘Lady Justice’ by Eraclis Aristidou

What exactly is ‘access to justice’, and why do we need to preserve it? To answer that we need to first understand how the phrase came about, and then why it may be in danger of becoming a legal bygone.

‘Access to Justice’ was a phrase used by Lord Woolf in 1996, when attempting to streamline the litigation processes attached to personal injury claims suffered by everyday people in the United Kingdom. Largely based upon the combined incentives of Alternative Dispute Resolution (ADR) and part36 (early offers strategies), it was suggested that by expediting claims, there would by default, become a lesser chance of spiralling legal costs, and reluctance of the poor seeking recovery for damages sustained in events beyond their control.

While from a superficial slant this ‘quickening’ of justice appears to embrace those without the means of representation and the legal acumen to work alone, it is now suggested that in fact the contrary has become true. With the collective impact of legal aid cuts, increased court fees and numerous court closures, the resulting options take on a less attractive sheen, in lieu of the growing hesitance to seek legal reparation. This gross misdirection translates as a more cloaked prevention, over the illusion of equitability, and to date there are now many activists campaigning for a dramatic change in policy.

As was discussed in my own academic paper, the dangers inherent to early offers far outweigh the genuine reward for pursuance of authentic remedy, but unless fiscally challenged claimants are determined enough to transcend the aggressive manoeuvres of defendant representatives, the odds will by majority, remain stacked against them. This in effect, strangulates the innate purpose of accessible justice, and places far greater value upon the currency of industry; therefore while far from helping the weak, it runs a calculable risk of leaving them powerless and unable to fight back.

Legal Aid

In a report published in October 2016, Amnesty International summarised that three key groups were directly affected by arbitrary cuts to legal aid support, namely (i) the vulnerable, (ii) the transitory and (iii) the disabled. And while taking great strides to illustrate the far-reaching consequences of such inconsiderate narrowness, the message was quite simply that:

“Amnesty International is therefore calling on the UK government to urgently fulfil its promise to review the impact of the cuts and take steps to ensure the right of the most disadvantaged sectors of society to access justice is adequately protected.”

 Writing as a father of a special needs child, the first and third groups possess immediate implications for families similar to my own, who for one reason or another, might find themselves facing legal action, whether through public body frustrations, or simple damages-based incidents. Yet knowing that in the first instance there is no legal counsel, and no validation of a right to claim without parallel concerns of costs, there remains only the stark realisation that the price of justice now relies upon the roll of a loaded dice.

Legal Costs

Interestingly, while this area of discussion might prove hard to quantify with any  degree of exactness, the Legal Ombudsmen publication ‘Ten Questions to ask your Lawyer about Costs‘, proves instantly invaluable when evaluating the merits of private law claims.  More notably, recent changes to the fixed fees threshold within litigation, has to some extent, appeased the fears of those predominantly affected by previous reforms; yet the issue remains that claimants subject to a deprivation of counsel (pro-bono or otherwise), might still think twice before filling out their CNF forms. This is a frank but cautious sentiment echoed by Jonathan Smithers of The Law Society, who remarked:

“A single approach for all cases, regardless of complexity, will lead to many cases being economically unviable to pursue which undermines the principle of justice delivering fairness for all.”

However, when all is said and done, it is unlikely that both the practice industry and public interest will ever read from the same page, but that should never encourage the marginalisation of legal support in a world that is only becoming more crowded and prone to collisions of priority.

The Courts

While there is understandable anger at the gradient closure of almost 90 courts across the country, the promise of a heavily invested tech and user-friendly system, could prove the one positive in this tempering of justice, and so it would be remiss to level accusations of deliberate prevention, when the suggestion of ‘pop-up’ courts is peddled through various forms of digital media.

There is however, cause for concern when terms such as ‘makeshift’ and ‘public houses’ are used in the same context as the ‘fair’ and ‘reasoned’ dispensation of justice, within  an (albeit shrinking) framework of purpose built environments, before calm and attentive audiences. In fact, one might go so far as suggest that legal discourse is becoming diluted, by virtue of the fact that ‘quickie’ courts will themselves, overlook the precision of judicial application in favour of higher case turnover. Contrastingly, the option to pursue legal ends through online portals would seem to proffer greater structure, less chance for media intrusion and a significant cost saving, as was shown during Gary Linker’s recent divorce.

In closing, the point in greatest need of clarification, is that the true meaning of ‘access to justice’ is not one of quick fixes to complex problems. Rather it is about an equal right to a domestic jurisprudence generations in the making. By weakening the fabric of reparation in favour of mass appeasement, the English judicial system will only prove itself counter-productive and rushed; and so it is crucial that any consideration for public interest, and those employed to serve them, must be delicately balanced, rather than a mere continuance of treating every legal problem like a nail.

Future Law

Insight | February 2017

Future Law
Image: ‘Into the Future’ by Trilby Cole

The world is in an increasing state of flux, and we are all racing to keep up. While there are countless casualties of the speed at which this is happening, the emerging impact upon law, and how it is both written and applied, is in need of collective address. We cannot reasonably hope to continue existing as island communities, instead there is a genuine need to share a goal of jurisdictional interdependence; a process that is already in delicate motion, despite entrenched political and religious divergence, or the increased polarity of wealth.

How these legal adjustments will materialise is still hard to quantify with precision, but there is evidently a number of academic and professional opinions echoing a similar message, and it is perhaps time that the global community started to at least consider the plausibility a uniform rule of law, instead of assuming that the status quo can continue to remain effective.

Regular contributor to domestic industry news is The Law Society, whose recent article ‘The Future of Legal Services‘ touches upon a number of nationally indicative trends that convey a similar pattern to those held here; and key elements such as the growth of national and international economies, along with the quantum progression of technology, are instrumental in shaping emerging legal practices and the prevalence of market-adjusted pricing. However, it is just as important to note that the converging of political manifestos will ultimately produce a narrowing of access to justice, through global regulation and a fierce preservation of economic interests.

In fact, one of the many questions asked of law graduates seeking training contracts, is how they feel the merging of investment and banking sectors will influence the overall operation of multi-national law firms, as a growing number seek consolidation to navigate the undercurrent of change. While it is a reasonable question in itself, it demonstrates a lack of cognisant awareness to the effects of destabilisation, despite history showing that the only real constant is change.

In contrast, we need only look at driverless cars to appreciate the impact automation of transport will have upon civil litigation and road traffic accident claims, as after all who becomes liable when injury does occur? There are also suggestions that mechanised judges could prove the way forward when trying to manage the algorithms of robot-created journalism, and how best to decipher the rights from the wrongs, as was discussed in a recent paper in the European Journal of Law and Technology; an article that ponders not only possible extinction of the human prose, but the relevance of solicitors when complex cases require meticulous attention to detail, and a diverse range of case material to help develop laws.

Similarly, when an internationally administrative view is expressed, the cautionary sentiments remain just as poignant when considering that the reluctance to welcome organic growth leaves a lot to be desired. This concern was remarked by Angel Gurria OECD Secretary-General back in 2015, when she spoke at the UK Global Law Summit and warned:

“The classic model for the development of international law is not always adapted or even adequate to this rapidly changing environment. In contrast, the negotiation of major international conventions or agreements is often slow and painful. In some cases  it has come to a complete standstill.”

So when we contemplate the hybrid mechanisation of justice and legal discourse, we also embrace a fear that risks crippling those students seeking to secure their place in all areas of practice. Although there is no doubt that an empathic and world-experienced lawyer can undoubtedly help lead the charge into this new era of dispute resolution. However, such an endorsement is shallow by design if the industry does nothing to exploit attributive software in lieu of effective human centred mediation, as was pointed out by Adam Nguyen of Law Technology Today, who writes:

“Although technology is taking over many aspects of lawyer’s jobs, automated tools are adept at rescuing lawyers from low-level and repetitive tasks, such as document management, contract review, filing, docketing, billing and accounting which bear little connection to law practice but increasingly consume much of lawyers’ time.”

Whichever way we choose to look at it, the increasingly immediate need to synergise with autonomous (and ultimately supportive) forms of non-human legal administration (and even algorithmic case determination) is inching closer, and while it may send shivers up some spines, it would be unwise to overlook the total number of fail cases falling victim to poor preparation, and the unimaginative cross-referencing of legal resources; all of which dilutes down to shedding the fear in the face of this unavoidable truth, in order to nurture better lawyers, lawmakers and judges, regardless of geography and jurisdiction.

 

Birth of the Human Rights Act 1998

Insight | February 2017

Birth of the Human Rights Act 1998
Image: ‘Against Forgetting’ by Marcia Bushnell

The Human Rights Act was brought into being as a consequence of the European Convention on Human Rights (ECHR), which was first formulated by the Council of Europe in 1950.

Founded upon the Universal Declaration of Human Rights (as used by the United Nations), ten countries first rallied for its formation, including Belgium, Denmark, France, Ireland Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. The Convention took effect in September 1953, with the primary directive of protecting specific fundamental rights among Member States of the Council of Europe, while the core values of the UK constitution enjoyed presumptions of liberty, representative government and the rule of law.

Before the ECHR became intrinsic to domestic law, Ministers often found themselves abusing discretionary powers, which amounted to a constitution largely beyond reproach, relying instead upon collective political norms for enforcement. This protracted period of neglect gave rise to an increase in administrative jurisdiction, and during the 1980s the courts began to adopt a more concrete conception of the rule of law, preferring instead to propagate such values as ‘freedom of expression’ ‘equality’ and ‘freedom from destitution’. However, presumptions followed that common law infringement upon these values would deem statute intervention unlawful, and it soon became conventional thinking; particularly in the well known R v Secretary of State for the Home Department ex parte Brind, where the domestic courts held that as the ECHR was not part of English law, the government was able to restrict media coverage of Irish extremist groups, despite clear encroachment upon the right to freedom of expression, and a sadly failed appeal by the journalists fiercely defending that right.

In fact, it wasn’t until 1998 that the British constitution accepted that using convention as a means of entrusting civil liberties could no longer be tolerated, and so on 9 November 1998, the Human Rights Act 1998 was enacted by Royal assent. From 2 October 2000 onward, all rights and freedoms previously safeguard by the ECHR were now directly enforceable though UK common law, and the sovereignty of Parliament was agreed.

This upheaval in institutional law was particularly significant, in that for the first time English judicial authority was awarded greater scope for case interpretation, where historically such matters were determined through ministerial debate. This was however, a change that was not without its detractors, nor ignorant of an entrenched inclination to overlook common law in lieu of political fervour.