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
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, 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
there is a real possibility that the stolen information will be destroyed
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.
the case of Derby v Weldon three separate guidelines for freezing
injunction were recognised.
The defendant needs to have assets in its jurisdiction
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.