Cyanamid ruled that the decision concerning interlocutory

Lord Diplock altered the test of showing prima facie in interlocutory injunction application in the case of American Cyanamid Co. v. Ethicon Ltd. Before Cyanamid, the application of interlocutory injunction was decided by the courts based on their view of the relevant substantive law. That meant that the plaintiff needed to demonstrate a prima facie case that their right claim or denied existed or did not exist. The decision as to the prima facie case was taken without discussing the strength of the case and without comments regarding the meaning of what constituted prima facie. Cyanamid brought a change in this approach. This essay will explore whether this approach retains or removes in entirety the need for establishing a prima facie case.

The House of Lords in Cyanamid ruled that the decision concerning interlocutory injunction is based on the existence of a right or the violation of such right or both. It held that the right is uncertain until the final judgment. In Cyanamid, Lord Diplock ruled that there must be a serious question to be tried. Further, he stated that there must instead be a real prospect of success regarding a permanent injunction at the trial. The court applies a balance of convenience considering these factors while dealing with an interlocutory relief.

Will it be correct then to state that the need for a series question governs the decisions on interlocutory injunction application? While exploring the question of proportionality or appropriateness concerning labour rights disputes involving trade union collective protest action, it is argued that the decisions favour the states rather than the trade unions. This occurred in the case of Viking and Laval, where the trade unions are held liable instead of the member states of the EU. Similarly, in the UK, courts are prone to deliver relief in the form of interlocutory injunction to employers, who often seek such relief. The risk of economic loss is the priority of the employers, who do not want to suffer economic loss while they wait for the hearing of an action based on the merits of the case. Courts favour the employers when the employers demonstrate a prima facie case and they satisfy themselves with the test of convenience. Given this, the test of convenience cannot be concerned with the question of proportionality, but rather a mere assessment of identifying the party that would face greater inconvenience in case a labour dispute occurs or does not occur.

Given the points above, the ruling in Cyanamid cannot be strictly applied, which means that the need to show prima facie is still relevant. Despite the ruling in Cyanamid, courts have not distant themselves from applying prima facie doctrine. Lord Browne supported the need for prima facie case while considering the balance of convenience. Sir John Pennycuick not only supported, but expanded its application to application that would determine the issue in the action and to stop proceedings while limiting the Cyanamid rule to applications pending determination of parties’ rights at the hearing.

The case rulings mentioned above show that there is a diverse opinion on the need of prima facie case and that the courts are not ready to depart from the prima facie requirements. The courts cite public interest as one of the factors for doing do. This is one of an important factor that demands establishing a prima facie case, as was also seen in Fellowes & Son v. Fisher, where Lord Denning cited difficulty in applying guidelines other than prima facie requirement. The consideration of such important factors was also seen in Themehelp Ltd v West, which concerned the question of enforcement of a performance bond pending a fraud trial. The Court of Appeal considered the factor of whether or not the order would disturb the mercantile practice of treating performance bonds as autonomous guarantees.

The situation in the judicial practice concerning the question in hand shows that the courts are finding challenges in applying the guidelines as to the existence of a serious question instead of showing prima facie case. This is supported by Lord Diplock stated that a prima facie case is required as the courts need to estimate the strength of a party’s case in order to take immediate decision.

The possibility of irreparable harm, as Lord Diplock stated in Cyanamid, is the reason for interlocutory injunction with the purpose of protecting the plaintiff against an injury in case of violation of his right and where he cannot be adequately compensation in damages. Irreparable harm is a critical factor while determining an interlocutory injunction. However, it is difficult to define it. For instance, the damages can be inadequate as the compensation for an injury cannot be correctly calculated. The calculation may be current, but the damages may not be adequate given the best remedy in a given circumstances. These may happen in cases of nuisance or negative covenants. Given the varying circumstances attached with cases, it seems appropriate to claim that the Lord Diplock’s no-prima facie is dictatorial as it ignores a party’s likelihood to win, which in a majority of cases the court could reasonable figure out. This indicates that the determination of the strength of the parties’ cases still presents itself as the crucial factor in determining a relief of interlocutory injunction while assessing the risk of harm and the balance of inconvenience.

In conclusion, the need to demonstrate prima facie case is still relevant. Cases where an immediate decision is need, the courts have to consider strength of a party’s case. Crucial factors such as the public interest or the challenge in defining irreparable harm or correct calculation of damages demand the need of a prima facie case. Thus, the guidelines of determining a serious question to be tried is lacking as to its defining and application to remove the need of a prima facie case.

Cases

American Cyanamid Co. v Ethicon Ltd. [1974] Fleet Street Reports 312 (CA)

Fellowes & Son v Fisher (1975), [1976] Q.B. 122, [1975] 2 All E.R. 829 (CA)

Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet (2007) C-341/05

The Rosella or International Transport Workers Federation v Viking Line ABP (2007) C-438/05

Smith v Inner London Education Authority [1978] 1 All ER 411, CA

Themehelp Ltd v West [1995] 4 All ER 215

Journals

Gray C, ‘Interlocutory injunctions since Cyanamid’ (1981) 40(2) The Cambridge Law Journal307-339.

Groleau JP, ‘Interlocutory Injunctions: Revisiting the Three-Pronged Test’ (2008) 53 McGill LJ 269

Perell PM, ‘The Interlocutory Injunction and Irreparable Harm’ (1989) 68 Can. B. Rev. 538

Books

Blanpain R and Andrzej M. Swiatkowski, The Laval and Viking Cases: Freedom of Services and Establishment V. Industrial Conflict in the European Economic Area and Russia (Wolters Kluwer Law & Business 2009)

Cotter TF, Comparative Patent Remedies: A Legal and Economic Analysis (Oxford University Press 2013)

Notes

Whether or not there is the need to demonstrate a prima facie case in an interlocutory injunction application involves a critical thinking. To advance the analysis, the first rational task was to find the right case through reviewing books and articles, which I found in the rulings of Lord Diplock in the Cyanamid case. Lord Diplock’s ruling altered the need of prima facie by shifting the focus on the requirement of a serious question to be tried.

Reading more cases proved the second most important thing to do. This led the analysis to cases and arguments that do not favour Lord Diplock’s ruling. While understanding the arguments and cases, presenting the information in an orderly manner proved a practical skill to learn. For example, I was able to present the challenges by referring to the relevant and appropriate case ruling to state the challenges in terms of its application as well as existence of factors that demand a prima facie case. Cases such as Viking and Laval (at EU level) and practices at the UK domestic courts presented factors such as the risk of economic loss particularly concerning the employers overriding the requirement of serious question.

Identifying and applying relevant cases is crucial to approach the current question. I need to focus more on this area. However, I found cases such as Fellowes that expose the courts (particularly the Court of Appeal) to challenges applying the Cyanamid ruling. Courts also support the rule of a prima facie case relying on public interest question and the need to take immediate action. At the same time, arguments that the lack of clarity in defining irreparable harm also points out the varying factors that call for extensively exploring wider range of factors courts consider.

Based on the current research findings, it is concluded that the courts seem to rely more on determining the strength of parties’ case, which is determining a prima facie case.

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