Injunctions are commonly known as restraining orders. In essence, it is an interim relief in the form of a court order of an equitable nature requiring the defendant in the injunction from doing a particular action or set of actions i.e. to cease construction on neighbouring estate that damages the plaintiff’s property.
Injunctions are usually awarded where the defendant to the injunction has infringed or is threatening to infringe the plaintiff's rights, legal or equitable and damages (monetary compensation) would be inadequate to compensate the plaintiff. An injunction must be expressed in exact terms for the defendant to know precisely what he must do, or refrain from doing.
A plaintiff needs to justify the continuance of an injunction by showing some connection between the defendant and the particular act or acts in respect of which the injunction was sought for.
Types of Injunction
Injunctions are categorised as interim, interlocutory or final; prohibitory or mandatory; ex parte or inter partes. An injunction which restrains the performance of an act or set of acts is prohibitory, while an injunction which directs a party to do the same is mandatory. Injunctions are applied and utilised differently depending on the type of legal disciplines i.e. commercial law or family law.
There are many types of injunctions i.e. Fortuna, Erinford, Mareva, Anton Piller etc. For the purpose of this article, we will only discuss one of the above examples.
Simple examples of an Injunction
For example, in a domestic violence scenario, a plaintiff applies to the court for an injunction for the purpose of keeping the assaulter away from the plaintiff. The plaintiff may need to satisfy the court that the plaintiff is under a threat of imminent danger.
In a commercial example, an injunction is obtained to serve as an interim measure to preserve the status quo of the matter by restraining a defendant from dissipating his assets which may be necessary to meet the plaintiff’s claim.
Following the above examples, an injunction may be applied ex parte (with respect to the interests of one side only). Such rationale is to prevent the defendant from being alerted.
Interim, interlocutory and final
An injunction granted after the final disposal of the suit is known as a final injunction. Before the final disposal of the suit, an injunction may be sought in the interim or an interlocutory form. The purpose of an interlocutory injunction is to maintain the status quo of the matter until the final disposal of the suit.
What is the difference between an interim and interlocutory injunction
In practice, these terms are often used interchangeably. The difference is that an interim injunction is obtained for a short duration, until both parties can attend court for the hearing of an application of an interlocutory injunction. When the latter is obtained, it generally remains in force until the final disposal of the suit. An interlocutory injunction prevents the plaintiff from suffering irreparable damage that could not be adequately compensated in damages before full merits of the case is heard.
Authority to grant an Injunction
The Sessions Court and High Court have authority to grant injunctions. This authority stems from S.65(5) of the Subordinate Courts Act 1948 and Paragraph 6 of the Schedule to the Courts of Judicature Act 1964 respectively, read together with Part III of the Specific Relief Act 1950 (“SRA”).
Equitable Nature of an Injunction
The granting of an injunction is a discretion of the court as it is an equitable relief. It is essential that the applicant makes available to the court all material facts for the consideration of the court before exercising its discretion.
Full and Frank Disclosure
It is settled law that in an ex parte application, there is a duty on the plaintiff to make full and frank disclosure of all facts, those in and against his favour that could have a bearing on his application. Failure to ascertain all material facts or ignorance of the importance of any fact is no excuse.
Appeal against Refusal
If an injunction is refused, there is a heavy burden on the appellant to show that the learned judge has erred in principle or his decision was unreasonable in a way no reasonable judge properly directing himself as to the relevant considerations would have exercised his discretion in the same manner.
Refusal of an Injunction
The below lists down the general circumstances when an injunction will be refused. Other factors the court takes into account when granting or refusing an injunction depends on the facts of the case and compliance with the established principles in the English case of American Cynamid.
Section 54 of the SRA lists down circumstances in which an injunction cannot be granted.
Section 29 of the Government Proceedings Act 1956 prohibits the grant of an injunction in civil proceedings instituted against the Government. This principle also applies in respect of applying for an injunction against an officer of the Government as this tantamount to granting an injunction against the Government.
when an plaintiff to an ex parte injunction suppresses material facts, the injunction will be refused.
when the matter depends on questions of law arising on disputed facts as the court cannot adequately determine the truth or falsity of the plaintiff’s or defendant’s assertions.
when granting an injunction is redundant if by the time the injunction is granted, the purpose of the injunction is defeated i.e. the harm has already occurred
Other than the above, for example in an application for an interlocutory mandatory injunction, the court is reluctant to grant an injunction unless the plaintiff establishes a strong and clear case. This reluctance stems from the fact that granting the relief of an interlocutory mandatory injunction almost equates to granting the primary relief sought in the main action. Also, the court needs to hear the merits of a case before arriving to a decision, which can only be decided to after a full trial.
Undertaking as to Damages
Before an ex parte injunction is granted, the court may require an undertaking as to damages from the plaintiff to pay the defendant any damages that may be suffered as a result of the injunction.
The plaintiff’s undertaking vests the court with jurisdiction to make an appropriate order to recompensate the defendant for any loss suffered if the plaintiff is proven to not be entitled to the injunction in the first place.
The plaintiff must justify its financial ability to meet its undertaking. However, where the injustice to the plaintiff is plainly obvious, the court is entitled to dispense with the usual undertaking as to damages.
If the plaintiff’s financial resources is inadequate, the court may order the plaintiff to fortify his undertaking with a security or for a third party to provide for that undertaking with a security if appropriate.
There is no same requirement for an undertaking as to damages in an inter partes application as the defendant will have the opportunity to defend himself.
Principles of Granting an Injunction: Case of American Cynamid
As an injunction is an equitable remedy, the Courts have discretion in granting or refusing an application for an injunction. The principles are settled law and its jurisprudence is articulated in the English case of American Cyanamid Co v Ethicon Ltd  1 All ER 504.
In essence, the said principles are as follows:
(1) Whether there is a serious question to be tried
The claimant has to satisfy the court that the claim is not frivolous and has some prospect of success.
(2) Which way would the balance of convenience of each party lie at
If an injunction were refused, but the plaintiff wins at trial, would damages be enough to compensate him for the loss he has suffered by not having the injunction granted. If the defendant is wrongfully restrained, will damages be adequate to compensate him.
(3) Whether an award of damages would be an adequate remedy
“If damages in the measure recoverable would be an adequate remedy and the defendant would be in a financial position to pay them, no interim injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage.”
The above principles have received judicial appreciation by the Malaysian courts. See Edward Goh Geok Seng v Dunstan Dumpangol & Ors (No 2)  2 MLJ 121.
Injunction Case Study
The below is a case study of a type of injunction, Mareva Injunctions, commonly known as freezing orders.
The English Court of Appeal case of Mareva Compania Naviera SA v International Bulkcarriers SA  1 All ER 213 explains the jurisprudence of a Mareva Injunction.
Mareva Compania Naviera (“Plaintiff”) were shipowners of the vessel, Mareva. The plaintiffs leased Mareva to International Bulkcarriers SA (“Defendant”). The Defendant sub-charted Mareva for a voyage to India transporting fertiliser. The Indian High Commission had paid 90% (£174,000) of the charter fee into the Defendant’s bank in England.
The Defendant fell into financial difficulty and subsequently stopped paying the charter fees to the Plaintiff. The Plaintiff considered the contract to be a repudiated but the Mareva has passed Cape Town and is on its way to India.
The dilemma for the Plaintiff was that the Defendant would not have the sufficient funds to satisfy an award for breach of contract if granted. However, the Plaintiff knew that the Defendant had already received the £174,000 in its bank account. The Plaintiff sought an injunction freezing that money in the Defendant’s bank account until their claim in contract could be determined.
The Plaintiff acted swiftly which resulted the court only hearing the Plaintiff’s side of the story. This meant that the Plaintiff’s argument had to be really convincing because it is inherently unfair for the court to restrain a party’s use of their own assets when there was no judgement against that party.
The English Court of Appeal held that:
“… a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets.”
The injunction granted by the English Court of Appeal came to be known as a Mareva Injunction. The jurisprudence in the above case has received positive judicial treatment by the Malaysian courts. See Pacific Centre Sdn Bhd v United Engineers (M) Bhd  2 CLJ 319.
Effect of Non-Compliance with an Injunction
Injunctions are generally granted in civil matters. However, as an injunction is a court order, violating one attracts criminal liability such as being sent to prison or fined.
An injunction may contain a penal notice. An example of a penal notice is as below:
“If you, the abovenamed 1st and 2nd Defendants and/or your agents and/or your directors and/or employees or otherwise howsoever neglects to obey and/or otherwise disobeys this order in accordance with its terms, you, Ali (NRIC No.) and Muthu (NRIC No.) shall be liable to process of execution, including without limitation committal to prison for contempt of court for the purpose of compelling you to obey the same.”
This article does not and is not intended to constitute as legal advice. This article represents the views of the writer alone. Information in this article may not constitute the most up-to-date information. Specific professional advice should be sought regarding your specific circumstances.