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05/07/13

Equitable remedies are discretionary which are granted by the courts when it is convenient to do so and when legal remedies are insufficient. However as equitable remedies are discretionary, hence the court might not grant an order even if the elements are satisfied. But maxim the ‘equity will not suffer a wrong without a remedy’ will be considered by the court


The most common equitable remedy is injunction; this can be granted by the high court under Section 37 English Supreme Court Act 1981. An injunction is a Court order which requires a person to stop (called a "prohibitory injunction") or to do (a "mandatory injunction") a particular act. 

Interim Injunctions are temporary and will last until the conclusion of a full trial hearing, this type of injunction is applied to stop the defendant from acting before the full trial. In order to seek interim injunction, the three guidelines set by Lord Diplock in the case American Cyanamid Co v Ethicon Ltd should be considered.

Firstly, the court will examine whether there is a serious question to be tired. Therefore issue to be tired for an interim injection must have strong substance in the case.
 
Second guideline has two limbs- 
 1-would the money be able to compensate the claimant and can the defendant are in a position to pay? 
 2- If it appears that injunction was given incorrectly, can the claimant pay undertaking in damages to compensate the defendant. 

The third guideline which requires consideration is balance of convenience. In the case of Cayne v Global Natural Resources PLC, it was stated “…it is not mere convenience that needs to be weighed but the risk of doing an injustice to one side or the other…” 
Thus while granting Interim injunction the court will consider the position of both parties and if feels that granting an injunction may put the other party to an disadvantage then the court may contemplate maintaining status quo. 

Search order 

Search Order, formerly known as Anton Pillar, now under Section 7 Civil Procedure Act 1997. Search orders are granted ex parte meaning without giving notice to the other party. This could potentially assist the claimant to explore the defendant’s premises, towards discovering any of their Patents or goods.

In the case of Anton Pillar v Manufacturing Processes Ltd further three established in order for Search order to be granted.   
1-There must be Extremely Strong prima facie case 
2-Serious potential damage 
3-Whether there is a real possibility that the stolen information will be destroyed      

Freezing injunction   

Freezing injunction, earlier known as Mareva injunction, now under Civil Procedure Rules. Seeking freezing injunction could prevent the defendant from disposing its goods or patents. It is considered to be in the best interest to seek freezing injunction and search order together as it gives the claimant the opportunity to inspect the defendants premises without anything being removed.      

In the case of Derby v Weldon three separate guidelines for freezing injunction were recognised.  
1- Good arguable case 
2- The defendant needs to have assets in its jurisdiction 
3- There must be real risk of information or goods to be destroyed or removed. 

We hope this was helpful for those of you who are having difficulties distinguishing whether compensation or a court order will settle things for you.

Stay tuned for more!