The Merits of Equitable Fairness in the Context of Injunctions Essay

The Merits of Equitable Fairness in the Context of Injunctions - Essay Example At times injunctive relief can be obtained in cases in connection with damages or as a substitute for damages.2 The merits of the fairness of injunctive relief are contained in Section 37(1) of the Supreme Court Act 1981 which provides that: The High Court may be order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.3 Section 37(1) of the Supreme Court Act 1981 therefore contemplates that injunctive relief will only be granted when the court considers it fair to do so. Fairness is derived from the use of the terms â€Å"just† and â€Å"convenient†. In order to understand how the terms just and convenient amount to fairness in the proceedings it is necessary to examine how courts exercise the jurisdiction for granting injunctive relief as provided for under Section 37(1) of the Supreme Court Act 1981. ... As Charleton observed, a prohibitory injunction seeks to regulate one party by forcing that party to go back to behaviour that is consistent with the terms of a contract. Presumably, the party has either failed to act in certain way or has stopped acting in that way. By ordering a prohibitory injunction, the parties are expected to continue as if nothing had come between them when one party is forced to act in a way that he or she no longer wishes to act.7 It can be argued that the prohibitory injunction achieves equitable fairness because it remedies situations in which, a party to an agreement discontinues a contractual obligation to the detriment of the other party who has invested significant resources in reliance on the continued commitment on the part of the offending party not to do something in particular. However, according to Lord Cairns LC in Dolman v Allman, a prohibitory injunction will be granted â€Å"as a matter of course† and the court is not concerned about: ...a question of the balance of convenience or inconvenience, or the amount of damge or of injury.8 Prohibitory injunctions are therefore not concerned about what is fair and just between the parties, but rather, what is fair and just in terms of the contractual obligations of the parties. Mandatory Injunctions A mandatory injunction is an injunction compelling one part to â€Å"undo the effects of breaching a negative undertaking†.9 Unlike a prohibitory injunction, courts are less inclined to grant a mandatory injunction.10 Courts will typically refuse to grant a mandatory injunction and will only grant a mandatory injunction if the court is satisfied that the party against whom the injunction is sought has