INJUNCTIONS (Part 2)

Jurisdiction
The Supreme Court Acts of each country would normally provide the authority to grant an
interlocutory injunction. In Jamaica the Judicature (Supreme Court) Act (Jamaica), s. 49
provides the requisite authority.

INJUNCTIONS AND SQUATTING

The case McCoy & McCoy v Glispie1 involves disputed land. Mr Arthur McCoy and Miss
Marcia McCoy are the claimants who have brought an action against Mr Glispie, the defendant,
in which they are seeking an injunction restraining him from trespassing on the disputed land. Mr
Glispie responded to the claim by pleading that he purchased the property from the previous
registered owner, Mr Leslie Enasue Pinnock. Mr Leslie Enasue Pinnock appointed Mr Leslie
Edgerton Pinnock by power of attorney to act on his behalf. This power of attorney gave
Edgerton authority to take all such action necessary to recover possession of the disputed land.
The significance of this will be shown as this judgment progresses. The disputed lot is 47 while
the part of the land which it is conceded that the claimants have occupied is lot 46.

The trespass is said to have taken place on February 6, 2002, October and December 2007 and
January 2008. The primary remedy sought is an injunction because the claimants have received
compensation, in an earlier claim, for damage done to their property. However, since trespass is
actionable without proof of special damage the court may award some damage. It is being said
that Mr Glispie is still on the property and carrying out all sorts of works.

Mr Arthur McCoy and Miss Marcia McCoy are relying on sections 3 and 30 of the Limitation of
Actions Act. They say that they have been in possession of the disputed land, openly, without
permission and without force for a period of twelve years. This means, they say, that the right of
the paper owner to recover possession from them or even to re-enter the land has been
extinguished and therefore Mr Glispie cannot recover the disputed land from them despite his
alleged purchase of the land. The McCoys also say that this right to recover possession was
extinguished during the time Enasue was the registered proprietor. The relevant period for the
purpose of extinction of a right to remove a squatter in this current claim began in 1975.

There is no evidence, other than Mr Glispie’s assertion, that he purchased the disputed land.
What is clear is that whether he is a purchaser or not, the McCoys accuse him of being a
trespasser and they say that even if he were the registered proprietor he cannot trespass on the
land because of their undisturbed, open and peaceful occupation of the disputed land for twelve
years.

Counsel for the McCoys rely heavily on the outcome of a previous claim of Arthur McCoy and
Marcia McCoy v Leslie Pinnock and Fitzroy Gillespie. There has been no appeal from the
judgment entered in the earlier claim.

1
[2012] JMSC Civ 80

1
The significance of that earlier judgment and assessment is that it must be taken that Enasue was
liable for trespass and damages to the McCoys despite the fact that he was the registered
proprietor at the time of the trespass. Enasue, the paper owner, was found liable in trespass to a
squatter who pleaded that Enasue’s right to remove him was extinguished because twelve years
had passed from the time the right to remove the squatter arose.

The court found it difficult to understand why Enasue, if he was serious about recovering the
property, did not challenge the striking out and entry of judgment order in the earlier claim. He
was, as was stated, represented by counsel. He had given his son a power of attorney to take all
necessary court action regarding taking possession of the disputed property. Since the son had a
power of attorney, it must be taken that he knew of the court action but did not defend it.

Mr Arthur McCoy was already compensated for the special damage done to his property.
Judgment is made in favour of the claimants. The injunction restrains Mr Glispie and his agents
or servants or anyone acting or purporting to act on his behalf or on behalf of his heirs,
successors and assigns. All such persons are restrained from entering on and continuing to
remain on the land. They are also restrained from committing further acts of trespass and waste
on the same registered land.

Damages of J$50,000.00 were awarded.

INJUNCTIONS AND CONTRACTS

Contracts for personal services would not be specifically enforced either by specific
performance or by an injunction. The courts frown upon the principle of tying contracting parties
to a “relationship involving a status of servitude. On the other hand, the carrying out of
agreements must be encouraged by the courts, whatever remedy is used.”2 The court allows a
party who breaches his contract to submit to the penalties imposed by law. In De Francesco v
Barnum (1890) 45 Ch. D. 430, Fry J. said: "I should be very unwilling to extend decisions the
effect of which is to compel persons who are not desirous of maintaining continuous personal
relations with one another to continue those personal relations. .... I think the Courts are bound to
be jealous, lest they should turn contracts of service into contracts of slavery."

Many instances when an injunction is sought to enforce negative contractual obligations

concerns restraints of trade in the context of personal service contracts. It usually occurs in the
context of an employer/employee relationship. E, the employee with particular skills and talents,
promises to use those skills and talents for the benefit of Y (the positive contractual obligation).
Coupled with this positive obligation is an agreement not to provide those skills and talents (the
negative contractual obligation) for the benefit of another party R, many times a rival. If E
attempts to breach the negative contractual obligation, Y will seek to enforce it by obtaining an
injunction to prevent E performing those services for R. E usually wants to breach the negative
contractual obligation because he no longer wants to perform the positive contractual obligation
and wants to offer his skills and talents to R. Y is prompted to apply for the injunction because
he is of the view that, if E is prevented from offering his skills and talents to R, E will decide to
2
Martin, J; Hanbury and Martin; Modern Equity,16th ed. p.814

2
perform his or her positive contractual obligation to him. Y will seldom seek an order against E
for specific performance of the positive contractual obligation because, in most cases, it will be
refused on the basis that contracts for personal services are rarely specifically enforced.

Lumley v Wagner (1852) 42 ER 687

The defendant Johanna Wagner, an opera singer, was engaged by the claimant to perform in his
theatre for a period of three months. There was a term in the contract preventing her from singing
for anyone else for the duration of the contract without the written consent of Mr. Lumley. She
was then approached by the manager of Covent Garden Theatre, Frederick Gye, who offered her
more money to sing for him. Performance by Wagner of her contract with Gye would have
meant breaching the negative contractual obligation in her contract with Lumley.

The claimant sought an injunction preventing her from singing at Covent Garden Theatre. The
defendant argued that to allow an injunction would in effect amount to specific performance of
the contract in circumstances where specific performance would not be available.
The injunction was granted despite it having the effect of forcing the defendant to sing for the
claimant. It was to restrain Ms Wagner’s breach of the negative stipulation. Mr Lumley could not
have been granted any equitable remedy to order Ms Wagner to carry out her contractual
obligation to sing for him.

Lord St Leonards LC:

“Wherever this Court has not proper jurisdiction to enforce specific performance, it operates to
bind men's consciences, as far as they can be bound, to a true and literal performance of their
agreements; and it will not suffer them to depart from their contracts at their pleasure, leaving the
party with whom they have contracted to the mere chance of any damages which a jury may
give.”

Lord St Leonards observed that the effect of the injunction was only to prevent Wagner from
appearing at Covent Garden and that it did not require her to fulfill her obligation to Lumley at
Her Majesty’s theatre, something which his Lordship said he could not directly enforce, although
he conceded that the injunction could well tempt Wagner to perform her contract at Her
Majesty’s theatre.

The case has been much criticised. The claimant, Lumley, wanted the injunction to prevent Ms
Wagner singing for the rival theatre and to have Ms Wagner specifically perform her contract to
sing for him. The court had no jurisdiction to enforce the specific performance of this contract
for personal services, i.e. Ms Wagner singing for Mr Lumley. However, if Lumley could prevent
Wagner from singing at the rival theatre, it would force her to sing for him. The court would in
fact end up achieving for Lumley what it could not do directly.

The critics felt that an employee was not to be placed in the position of being forced to
specifically perform a contract for personal services. It is not an acceptable position to have the
defendant perform or be idle.

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Rely-A-Bell Burglar and Fire Alarm Company Limited v Eisler and Others3

The plaintiff company entered into an agreement, dated 5 April 1922, with the defendant E,
therein referred to as "the inventor," and thereby covenanted to employ, and the inventor
covenanted to serve, for five years from "the date thereof," and it was provided that "The
inventor during the term of his employment with the plaintiff company shall not enter into any
other employment, but shall do his best to promote the interests of the company and shall in all
respects serve them faithfully and shall not during the said term be interested in the business of
any other company, firm, or individual installing or dealing with burglar or fire alarms." E on 7
November 1925 left the plaintiff company's service in breach of his agreement with them, and on
3 December 1925 the second defendant, the Ideal Burglary and Fire Protection Corporation
Limited, was incorporated for the purpose of carrying on business as manufacturers and installers
of burglary and fire automatic detector alarms. E was appointed a director of that company on 4
December 1925, and allotted one of the only four shares allotted in the defendant company; he
was also appointed engineer to the defendant company, for which he was to be paid £12 a week.
The claim in the action by the plaintiff company was for (1) A declaration that E was bound until
5 April 1927, not to enter the employment of any company, firm or individual other than that of
the plaintiff company, or to be interested in the business of any other company, firm, or
individual installing or dealing in burglar or fire alarms; (2) An injunction restraining E in the
terms of the above declaration asked for; (3) An injunction restraining the defendant company
from employing E until 5 April 1927; (4) Damages. On the question whether the clause in the
agreement was in restraint of trade and as the plaintiff company had not shown that it was one
reasonably necessary to protect their business it was void, but if it was valid the only remedy was
in damages and no injunction to restrain E continuing in the defendant company's employment
could be granted.
Held: that the provisions of the clause, having regard to the fact that the period of service had
not come to an end, were valid in law, but no injunction could be granted restraining E from
continuing in the employment of the defendant company, and the only remedy was in damages.

Warner Bros Pictures Inc v Nelson [1937] 1 KB 209, -

Agreement signed by Warner Bros and Bette Davis appears in part below:
Positive covenant of personal service
1. "to render her exclusive services as a motion picture and/or legitimate stage actress" to
the producer [the plaintiffs] and to perform solely and exclusively for them.

Negative covenant

2. "she will not, during [the term of the contract] render any services for or in any other
phonographic, stage or motion picture production or productions or business of any other
person .... or
3
Chancery Division [1926] All ER Rep Ext 707

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 3. “engage in any other occupation without the written consent of the producer being first
had and obtained."
The defendant, in admitted breach of the contract, declined to be further bound by it and entered
into a contract with someone else whereby she received a considerably enhanced salary.

Warner Bros movie studio obtained an injunction against Bette Davis, precluding the legendary
movie star from starring in movies produced by other movie studios for a period of three years.
Branson J, conceded that Davis could well be tempted to continue to make movies with Warner
Bros, but ruled that this was no grounds for refusing the injunction. A crucial factor in the
judge’s decision was the fact that Davis was an intelligent and capable woman who could readily
obtain alternative employment if she resolved not to work for Warner Bros. The fact that this
alternative employment would be less financially rewarding than acting was not relevant.

In Page One Records v Britton4 a group of musicians appointed the claimant as their manager
for five years and they agreed not to engage anyone else as manager for five years. The group
wished a change of manager. The claimant manager sought an injunction to prevent the
employment of another. The injunction was refused, as it would encourage the retention of the
claimant. Such a state of affairs would be undesirable in a personal and fiduciary relationship in
which the defendants had lost confidence in him.5 An interlocutory injunction would compel in
effect the musicians to continue to employ the claimant, and thus would amount to enforcing the
performance of a contract for personal services.

MAREVA INJUNCTION

The Mareva injunction (known also as a freezing order, Mareva order), in common law
jurisdictions, is a court order which freezes assets so that a defendant to an action cannot
dissipate their assets from beyond the jurisdiction of a court so as to frustrate a judgment.
Mareva (or freezing) injunctions were from the beginning, and continue to be, granted for an
important but limited purpose and can be made to have world-wide effect: to prevent a defendant
dissipating his assets with the intention or effect of frustrating enforcement of a prospective
judgment. They are not a proprietary remedy. They are not granted to give a claimant advance
security for his claim, although they may have that effect. They are not an end in themselves.
They are a supplementary remedy, granted to protect the efficacy of court proceedings, domestic
or foreign.

A Mareva injunction is interlocutory, not final. It is ancillary to a substantive pecuniary claim for
debt or damages. It is not a cause of action. The court has no power to grant it unless there has
been an infringement of the claimant’s legal or equitable right. The injunction is named for
Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509,
decided in 1975, although the first recorded instance of such an order in English jurisprudence
was Nippon Yusen Kaisha v Karageorgis in 1975, decided very shortly before the Mareva
decision.

4
[1968] 1WLR 157
5
Martin, J: Hanbury and Martin: Modern Equity, p. 815 16th ed.

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In the Mareva Compania Naviera SA v International Bulkcarriers SA, the plaintiffs, Mareva
Compania Naviera SA (“the shipowners”), issued a writ on 20 June 1975 claiming against the
defendants, International Bulkcarriers SA (“the charterers”), unpaid hire and damages for
repudiation of a charterparty. On an ex parte application Donaldson J granted an injunction until
17.00 hours on 23 June restraining the charterers from removing or disposing out of the
jurisdiction moneys standing to the credit of the charterers’ account at a London bank. The
shipowners appealed against Donaldson J’s refusal to extend the injunction beyond 17.00 hours
on 23 June. Lord Denning in granting the injunction said:

The court will not grant an injunction to protect a person who has no legal or equitable right whatever.
That appears from North London Railway Co v Great Northern Railway Co. But, subject to that
qualification, the statute gives a wide general power to the courts. It is well summarised in Halsbury’s
Laws of England:

21 Halsbury’s Laws (3rd Edn) 348, para 729; see now 24 Halsbury’s Laws (4th Edn) para 918
“… now, therefore, whenever a right, which can be asserted either at law or in equity, does exist, then,
whatever the previous practice may have been, the Court is enabled by virtue of this provision, in a proper
case, to grant an injunction to protect that right.”

In my opinion that principle applies to 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. It seems to me that this is a proper case for the exercise of this jurisdiction. There is money in a
bank in London which stands in the name of these charterers. The charterers have control of it. They may
at any time dispose of it or remove it out of this country. If they do so, the shipowners may never get their
charter hire. The ship is now on the high seas. It has passed Cape Town on its way to India. It will
complete the voyage and the cargo will be discharged. And the shipowners may not get their charter hire
at all. In face of this danger, I think this court ought to grant an injunction to restrain the charterers from
disposing of these moneys now in the bank in London until the trial or judgment in this action. If the
charterers have any grievance about it when they hear of it, they can apply to discharge it. But meanwhile
the shipowners should be protected. It is only just and right that this court should grant an injunction. I
would therefore continue the injunction.

It is recognised as being quite harsh on defendants because the order is often granted at the pre-
trial stage in ex parte hearings, based on affidavit evidence alone. A Mareva injunction is often
combined with an Anton Piller order in these circumstances. This can be disastrous for a
defendant as the cumulative effect of these orders can be to destroy the whole of a business'
custom by freezing most of its assets and revealing important information to its competitors.

A freezing order will usually only be made where the claimant can show that there was at least a
good arguable case that they would succeed at trial and that the refusal of an injunction would
involve a real risk that a judgment or award in their favour would remain unsatisfied. The risk
that the defendant will dissipate assets before judgment refers to the underlying basis of the
Mareva order and has been described as ‘the heart and core’ of the Mareva order: Barclay-
Johnson v Yuill [1980] 3 All ER 190, at 194. There must be a real danger that the defendant will
default if judgment is obtained against him or her.

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If the Mareva order is not ancillary to some such pre-existing cause of action it will not be
granted. In Siskina v Distos Compania Naviera SA [1979] AC 210, at 256; [1977] 3 All ER 803,
at 824, Lord Diplock said:

“A right to obtain [a Mareva order] is not a cause of action. It cannot stand on its own. It
is dependent upon there being a pre-existing cause of action against the defendant arising
out of an invasion, actual or threatened by him, of a legal or equitable right of the
plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the
court. The right to obtain [a Mareva order] is merely ancillary and incidental to the pre-
existing cause of action. It is granted to preserve the status quo pending the ascertainment
by the court of the rights of the parties.”

In exercising its discretion whether or not to grant a Mareva order the court weighs up the
strength of the plaintiff’s cause of action and the risk that the defendant will dissipate his or her
assets against various discretionary factors such as delay and whether there has been a full and
frank disclosure by the plaintiff.

In Jamaica Citizens Bank Ltd. v Dalton Yap (1994) 31 JLR 42/JM 1994 CA 8

The defendant, the holder of substantial assets in Jamaica, was employed to the plaintiff as
general manager with responsibility for the processing of credit card transactions including cards
issued on the authority of Visa International and Master Card International. Between April and
August 1993, the plaintiff bank carried out intensive investigations and discovered that the
defendant had established credit card relationships with overseas telemarketers without the
authority or knowledge of the plaintiff and without carrying out the checks and procedures
required to be followed by the plaintiff’s personnel. He also acted in contravention of the
condition of the plaintiff’s international licence and committed other irregularities bordering on
fraud and gross negligence. As a manager, the defendant also allegedly conspired with others to
set up a fictitious office to defraud the bank.

The defendant was summarily dismissed. An ex parte injunction was granted which was
discharged on application by the defendant. The plaintiff appealed.

Held: (i) it is appropriate for an appellate court to treat the matter as at large and exercise its own
discretion when the court below exercises its discretion on wrong principles;
(ii) before a mareva injunction can be granted two things must be established: first, that the
plaintiff has a good arguable case, the standard of which is evidence which is more than barely
capable of serious argument, but not necessarily having a 50% chance of success, and second, by
“solid evidence”, that there is a real risk that the assets will be dissipated, either by removal or in
some other way and that consequently a judgment or award in favour of the plaintiff would be
unsatisfied.
(iii) the injunction can be granted in relation to assets of a defendant held worldwide as the
remedy is in personam and the defendant would be in contempt of the court’s order if he
breaches the injunction in relation to assets wherever held; provided that (a) there are special
circumstances for the making of the order; (b) the order is in accordance with the rationale for
granting such an injunction and (c) it does not conflict with international law.

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(iv) if the grant of the injunction inflicts hardship on the defendant his legitimate interests must
prevail over the interest of the plaintiff. However, these legitimate interests must be established
by the defendant not just as an allegation but by an identification of those interests and the
hardship which he is suffering or is likely to suffer since these are within the peculiar knowledge
of the defendant himself. Appeal allowed. Injunction restored.

ADDITIONAL POINTS

Third Party Rights

An injunction will be refused if it interferes substantially with the rights of a third party. A third
party who aids and abets the breach of an injunction is guilty of contempt. However, in granting
the injunction:
 third party freedom of action must be protected
 expenses incurred by third party in complying with the injunction must be met by the
claimant
 though it creates no rights by way of a lien, a creditor is entitled to a right of set-off, if
this reduces the Defendant’s assets below the maximum sum.

Ownership of Assets
Only assets belonging to the Defendant can be included in a mareva injunction.
A third party who is prejudiced by the injunction may apply for its discharge or variation. Where
there is a dispute over ownership – that the assets belong to a third party, the following are the
guidelines which the court adopts:

I. where the assets on the face of it belong to a third party, the courts should be slow to
treat the assets as those of the Defendant.

II. where the defendant asserts the assets belong to a third party, the court should make its
own inquiry, depending on the circumstances;

III. the court will be guided by considerations of justice and convenience in the above
circumstances, in deciding whether to make further inquiry as to ownership of the assets
in question.
IV. Where the court decides to make further inquiry, it may order an issue to be tried between
the parties.

Position of the Defendant

Where the court orders a Mareva injunction the defendant is allowed to use part of his assets for
living expenses up to a stated amount and to pay outstanding debts and legal expenses in

8
defending himself, and to make payments in the usual course of business in fulfilment of
contractual obligations.

ANTON PILLER ORDER

An Anton Piller order is a court order that provides the right to search premises and seize
evidence without prior warning to the defendant. This prevents destruction of relevant evidence,
particularly in cases of alleged trademark, copyright or patent infringements. An Anton Piller
order is not an investigatory order: Microsoft Corp v Goodview Electronics Pty Ltd (1999) 46
IPR 159, at 164. In making the Order, the Plaintiff must give an undertaking in damages and
provide proof of his ability to pay. An undertaking by the Plaintiff’s attorney as to the
safekeeping of the documents seized must also be given.

The order is named after the English case of Anton Piller KG v Manufacturing Processes Limited
[1976] Ch 55[1] in 1976, although the first reported such order was granted by Templeman J in
EMI Limited v Pandit [1975] 1 All ER 418 in 1975. They are now known as search orders.

Because such an order is essentially unfair to the accused party, Anton Piller orders are only
issued exceptionally and according to the three-step test set out by Ormrod LJ in the Anton Piller
case:

1. There is an extremely strong prima facie case against the respondent,

2. The damage, potential or actual, must be very serious for the applicant, and
3. There must be clear evidence that the respondents have in their possession
relevant/incriminating documents or things and that there is a real possibility that they
may destroy such material before an inter partes application can be made.

Permission to conduct the search and seizure must first be obtained from the Defendant. The
Order does not authorize entry. Rather it commands the Defendant to permit entry. Refusal to
comply with the court’s order is, of course, contempt and this will be found even when the
defendant has refused to comply in order to launch an ultimately ill-fated application to have the
order dissolved.

The order may be challenged on the ground that any of the requirements the plaintiff was
supposed to meet - including the manner of the order’s execution - have not been properly
addressed. Given the high importance which the court places upon a plaintiff in respect of
meeting these requirements prior to an order being granted, it is extremely unlikely that such an
order will be set aside upon application by the defendant.

Arawak Trust Co Ltd v Inspector of Banks and Trust Companies

Court of Appeal of the Eastern Caribbean States (1994) 47 WIR 151

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The Inspector of Banks and Trust Companies searched the premises of a licensed trust company,
the appellant, under a search warrant. The inspector took possession of certain documents which
were returned on the following day. Seeking to challenge the inspector's actions, the appellant
issued an originating summons seeking (inter alia) disclosure by the inspector whether he had
disclosed to any third party information regarded under section 24(1) of the Inspector of Banks
and Trust Companies Act 1990 as confidential relating to companies managed by the appellant,
the identity of any such third party, the nature of any information disclosed, and the company to
which any such information related. The inspector resisted the claim to disclosure on the ground
of public interest immunity and privilege against self-incrimination. The inspector claimed to
have acted throughout on the advice of the Attorney-General (who was also the Director of
Public Prosecutions), who represented the inspector in the High Court. The trial judge ruled that
the inspector was entitled to rely on privilege against self-incrimination, although he held that the
inspector's claim to public interest immunity failed. The appellant appealed against the decision
and the inspector sought, on the appeal, to have the decision affirmed also on the ground of
public interest immunity.
Held, dismissing the appeal, (1) that an order for the disclosure would not be made on the basis
of a mere suspicion of a breach of section 24(1) by the inspector at a time when the facts as
established lent greater probability to the exercise by the inspector of a statutory right to disclose
the information than to a breach of a converse statutory duty to refrain from disclosure.
(2) That issues of public interest immunity from discovery or interrogatories were determined by
balancing the public interest in disclosure in furtherance of the administration of justice against
the public interest in avoiding damaging the nation or the public service; the appellant could not
invoke the public interest in the administration of justice without showing that it had a legal right
to exercise or the existence of a threat of a legal wrong to avert; further, the inspector was
entitled to claim public interest immunity on the ground that the protection of his activities fell
within the public interest of the nation and the public service.
(3) That the fact that in the circumstances of the particular case the danger of prosecution
appeared to be non-existent did not deprive the inspector of the immunity of the privilege against
self-incrimination in the absence of a protective court order or undertaking by the prosecution.

DEFENCES

Delay
Delay, laches, may be a defence even though the right of the claimant has not become statute
barred. Delay that will amount to a defence may be shorter for the interlocutory injunction than
is required for the perpetual injunction. The reason is that if the interlocutory application is
dismissed the claimant is not unduly prejudiced since he can still seek a perpetual injunction. The
denial of the application for a perpetual injunction acts as a dismissal.

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The claimant must act promptly in his application for an injunction since to act otherwise would
signal that his case is not urgent. A claimant who has delayed in his application for an
interlocutory injunction would hardly be able to satisfy a judge that it would be unreasonable to
6
make him wait until trial to have his claim decided.

In Kelsen v Imperial Tobacco Co Ltd the claimant was successful in his application for a
mandatory injunction to remove a sign which trespassed in the airspace above his premises even
though it posed no danger or caused no damage. The sign was in the location for seven years.

Shepherd Homes Ltd v Sandham [1971] Ch. 340

The plaintiff, a development company laid out a housing estate. There were no fences or other
erections in front of a building line formed by the front elevations of the houses. The estate
abutted on open land and there were repeated incursions of sheep and horses into the gardens of
the houses, causing damage. Certain residents on the estate asked to be allowed to erect fences.
One of them, S, had covenanted with the company on November 5, 1968 that he would not
"erect or plant or grow or permit to be erected planted or grown any fence or hedge in advance of
the said building line ...". In September 1969, in breach of covenant with the company, S erected
a fence which was in part in front of the building line. The company sought removal of the fence.
In October 1969 the defendant obtained the signatures of other residents to a petition that they
had no objection to fences. On October 23, 1969 the company issued a writ seeking an order for
demolition of the fence but made no claim for damages. No further steps were taken by the
company until February 25, 1970 when the company sought an order for demolition of the
fence but made no claim for damages. The matter went before the judge on May 8. The company
discussed possible solutions and sent them in a letter dated April 1, 1970 to the defendant’s
solicitors seeking unanimous approval of the plot owners. On April 10 the company sent a
circular letter to all owners explaining the scheme. There was no general agreement among the
owners.
The court was clear that it would be quite wrong to grant the mandatory injunction sought. This
is a delayed motion in a case where it is very far from clear that a mandatory order would be
granted at the trial. Furthermore, there is a cross-motion relating to the proposed application to
the Lands Tribunal. The principle is that an application for a stay on this ground, if made with
sufficient promptitude, should always be granted unless it is clear that the application to the
Lands Tribunal for a discharge or modification has no real chance of success. The court felt that
it was impossible to regard the proposed application to the Lands Tribunal as having no real
chance of succeeding.
On the question whether the court would grant a mandatory injunction after a four month
unexplained delay Megarry J said:- “I would be slow to subscribe to any doctrine that a
covenantee who issues a writ for breach of covenant and then does nothing for four months can
thereafter move at his will for a mandatory injunction as being something that he is entitled to
almost as of right for the enforcement of the covenant.”

Acquiescence

6
[1957] 2 QB 334

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Acquiescence is the assent to an infringement of rights, either expressed or implied from
conduct, by which an equitable right is normally lost. It is possible to find acquiescence without
delay and delay without acquiescence but many times there is an overlap. According to Jones v
Stones to satisfy the defence of acquiescence the following enquiry should be made: whether the
defendant was encouraged to believe he was entitled to act as he did; and if so, whether the
encouragement caused detriment; and if so, whether it was unconscionable in all the
circumstances for the claimant to assert his legal rights.7

H.P. Bulmer Ltd. and Showerings Ltd. v J Bollinger S.A. and Champagne Lanson Pere Et
Fils8

For many years certain producers of cider in England when marketing their products used the
words 'champagne cider' and 'champagne perry' to describe them. Producers of the sparkling
wine produced in the Champagne district of France and known as 'champagne' took no steps to
prevent the English producers using those words until 1970 when they brought an action against
an English firm claiming an injunction to restrain them using the name champagne. Two of the
biggest producers of cider in England thereupon brought an action against the French producers
claiming declarations that the English producers were entitled to use the expression 'champagne
cider' and 'champagne perry'. The French producers counterclaimed for an injunction to stop the
English producers from using the word 'champagne' in connection with any beverage not being a
wine produced in the Champagne district of France.

The court at first instance granted the injunctions because the plaintiff had failed to make out a
sufficient defence on the ground of delay and acquiescence. In the Court of Appeal one of the
two injunctions was discharged because passing-off was not established.
per Goff, L.J.: That a case of acquiescence might arise which did not depend upon delay; that
even in the case of a legal right there might be such inordinate delay that the court would not
interfere by way of injunction; that the legal right would only be wholly lost through
acquiescence arising from delay if in all the circumstances it was dishonest or unconscionable to
continue to assert it; and that in order for the court to withhold injunctive relief, the owner of the
legal right must have done something beyond mere delay, to encourage the wrongdoer to believe
that he did not intend to rely on his strict legal rights and the wrongdoer must have acted to his
prejudice in that belief. The judge held that in such circumstances the delay must be inordinate to
cause the injunction to be denied. In this case the delay was not inordinate since the appellants
had to seek legal advice before proceeding.
Gafford v Graham (1999) 77 P& CR 73
The defendant owned land which was subject to covenants benefiting the plaintiff, which
restricted the use of the premises to that of stabling for horses, and one residential bungalow, and
prohibited any building on the land unless approved by the plaintiff. In 1986 the bungalow was
converted into a two-storey house and the barn was extended, and in 1989 an indoor riding
school was constructed on the land, all without prior approval, and the business of a riding

7
[1999] 1 WLR from p.843 Hanbury & Martin
8
[1977] 2 CMLR 625

12
school was carried on the land. The plaintiff then sought to enforce his legal rights requiring the
defendant to demolish the riding school building and to cease its operations.
At first instance the judge refused the plaintiff's request for an order for demolition of the riding
school but ordered the defendant to cease operating the business, granted an injunction
restraining the defendant from using the land other than according to the restrictions and awarded
the plaintiff damages for the changes to the bungalow and the barn. On appeal by the defendant
and a cross-appeal by the plaintiff, held, the principal question was whether the plaintiff, the
owner of a dominant tenement9 who, with full knowledge of his legal rights, did not seek
interlocutory relief to restrain the unlawful erection of a building, ought to be granted an
injunction or damages in lieu. With regard to the bungalow and the barn, the question was
whether in all the circumstances it would be unconscionable for the plaintiff to continue to seek
to enforce his rights.
On the facts, the plaintiff had acquiesced to the building work as there had been no complaint by
him over several years, and this acquiescence was an absolute bar to relief. The plaintiff's real
and substantial complaints related to the clear breaches of the user and building restrictions
relating to the riding school. The plaintiff had acted promptly in 1989 to assert his rights, but he
made no application for interlocutory relief. This was important when deciding whether to grant
an injunction to demolish the school. As a general rule, someone who knew he had clearly
enforceable rights and the ability to enforce them, but who stood by while a permanent and
substantial structure was unlawfully erected, ought not to be granted an injunction to have it
pulled down.
Moreover, in 1989 the plaintiff had made it clear to the defendant that he would be prepared to
accept a cash settlement. An award of damages could be considered, but an essential prerequisite
was that it should be oppressive to the defendant to grant an injunction. Here that prerequisite
was satisfied. The plaintiff should receive damages instead, as adequate compensation for the
injury to his legal rights, He might reasonably have demanded £25,000, and damages would be
awarded in that amount. The defendant's appeal would accordingly be allowed in part, and the
plaintiff's cross-appeal would be dismissed.

The Proprietors, Strata Plan No. 305 v Greater Works International Fellowship & another10

The Proprietors, Strata Plan No 305 is the claimant.

Greater Works International is the 1st defendant and the occupier of seven shops in the Red
Hills Mall. Anthony Young and Loren Young, the second defendants, are registered proprietors
of strata lots in the said mall. The 1st defendant utilizes five of the lots as a church. The other
two are operated as an office and a bookshop respectively. Two of the seven shops are rented
from the 2nd defendants, who are the proprietors of those two. The claimant instituted these
proceedings to prevent the 1st defendant from operating as a church. It takes no issue with its
other operations.

9
piece of land that benefits from, or has the advantage of, an easement
10
[2013] JMCC

13
It is the claimant’s claim that the defendants are in contravention of the by-laws of Strata
Corporation 305, which prohibit:
(a) the use of the mall as a church;
(b) the use of the strata lots in a manner or purpose which causes a nuisance to the persons who
occupy the other lots;
(c) the making of noise and playing of music in a manner which disturbs the other proprietors or
their guests; and
(d) the use of the common property in a manner which interferes with the use
and enjoyment of the proprietors or their guests.

The claimant also complains that the use of lots number 24, 27, 28, 29 and 30 as a church is
hampering the commercial activities of the other members of the strata corporation who operate
businesses. The operation of the Strata Lots as a church has caused great inconvenience and loss
to the claimant, and unreasonably interferes with the use and enjoyment of the property by other
proprietors. The claimant seeks damages for breach of covenant and an injunction restraining the
defendant, their servants or agents from operating the strata lots as a church.

It is the view of the court that this application is for a prohibitory injunction. The application is to
restrain the defendants from using the shops as a church. It is an application to prevent the
defendants from further breaching the by-laws thus preserving the status quo as a shopping
centre.

Delay
Counsel for the defendant submitted that the application for the injunction ought to be refused
because the 1st defendant has operated as a church for eight years.

Acquiescence
Counsel for the first defendant submitted that the application for an injunction ought to be
refused because the claimant has led the 1st defendant to believe that it had no objection to its
occupation and use of the premises as a place of religious worship.

Counsel for the first defendant also submits that the fact that the claimant sold the shops to the
1st defendant with the knowledge that it was a church is evidence that the claimant has
acquiesced in its use as a church. The judge responded that a church is at liberty to buy property.
Like any other entity, it must use such property it buys in accordance with the rules governing
the premises. It is the first defendant’s evidence that the claimant has further acquiesced in the
use of the premises as a church because since 2005/2006 the claimant collected and accepted
maintenance fees from the 1st defendant in accordance with the Strata Titles Act. The claimant’s
executive also sought further contributions from the first defendant for the repair of the mall with
which request the first defendant readily complied.

The judge was not persuaded by this argument. She acknowledged that the defendants are
owners of the shops and are therefore required by the by-laws to pay maintenance. The fact that
they are operating in breach of the by-laws does not exempt them.

In the instant case, the 1st defendant purchased lots which use is governed by by-laws. The said
strata lots being registered, the 1st defendant is therefore fixed with notice of the by-laws and is
14
deemed to know that its operation is contrary to the by-laws. By purchasing the said shops, it
therefore agreed to use the said lots in accordance with the by-laws.

An important consideration is whether there are special circumstances which would cause the
court to withhold the relief sought by the claimants. The 1st defendant has settled in the mall. Its
congregation is accustomed to that location. Forcing it to move would jeopardize its operations
and cause it to lose some of its congregation. On the other hand the claimants complain of
hardship they are experiencing as a consequence of the 1st defendant’s operation as a church.

The judge’s ruling:

She said “In Olint, Lord Hoffman opined that the underlying principle in determining whether to
grant or to withhold the relief is, “that the court should take whichever course seems likely to
cause the least irremediable prejudice to one party or other.”” In this court’s judgment, the
consequences of the claimants’ assertion that the parking situation has affected their ability to
earn and the hardship being suffered by them as a result of the noise created by the church are far
more serious than the church losing some of its members.

Of importance is the fact that the mall is a commercial complex in which the proprietors have
invested and are now at risk of losing the benefit of their investment. Should the court withhold
the granting of the injunction and they succeed at trial it is likely to result in further hardship to
the claimant. Upon weighing the various matters that have been submitted for the court’s
consideration, it is the view of the court that the likelihood of injustice occurring as a
consequence of the remedy being withheld is greater than its refusal.

The defendants are in breach of several by-laws. The averments regarding the claimant’s delay
and acquiescence are in this court’s view tenuous. In the circumstances: The defendants, their
servants/and or agents are restrained from operating the strata lots numbered 24, 27, 28, 29 and
30 being the strata lots registered at volume 1187 folio 865,868, 869, 870 and 871 of the Register
Book of Titles as a church for a period of 21 days from the date hereof. The claimant gives the
usual undertaking for damages. Stay of execution granted for six weeks.

Hardship

Annette Nelson v Glasspole Murray [2012] JMSC Civ 76

On the 27th December 2006, the Claimants filed an action seeking:

(a) Damages for Nuisance.
(b) An injunction to restrain the Defendant by himself, his servants and or agents or otherwise
howsoever, from continuance or repetition of the said nuisance of constructing a roadway on
lands occupied by the Claimants and the Defendant at Mount Moreland in the parish of St.
Catherine.

The injury in this case is substantial and diminishes the enjoyment of the Claimant of her
property. The money payment would not be small, but would be of such a scope as to recognise
the fall in value of the house should the Plaintiff wish to sell. Further, there is nothing in the
Plaintiff’s conduct to disentitle her from injunctive relief. On the other hand, is the conduct of the

15
Defendant, in acting unilaterally, in stockpiling marl in close proximity to the Plaintiff’s home
and in undertaking such a fundamental transformation without the requisite permission and
consent of the Claimant and others who were likely to be affected, disentitle the defendant from
seeking damages in lieu of an injunction.

The Defendant has said that he has, for more than four decades, used the pathway as a footpath;
there is no oppression in requiring him to continue doing so. Accordingly, the Claimants are
entitled to an injunction to restrain the Defendant from continuance or repetition of the said
nuisance of constructing a roadway on lands occupied by the Claimants and the Defendant at
Mount Moreland, in the parish of St. Catherine, and to remove all stockpiles from the premises.
The Defendant is to dismantle and remove all the material used in the construction of the
roadway and retaining wall, and to restore the dirt track to its original position, as far as is
possible. I cannot fail to appreciate that the injunction which I am granting, and the operation
which will ensue, will involve the dismantling of the roadway that was constructed. I have no
doubt, care will be exercised to avoid, as far as possible, any further discomfort, dust, emissions,
such as have given cause for complaint in these proceedings. The result is that there must be
judgment for the nominal sum of one hundred dollars for damages, and there must be an
injunction.

Conduct of the Claimant

The claimant must come to the court with clean hands. If his own conduct related to the subject
matter of the dispute is questionable e.g. he acted unfairly, he is in breach of his own obligations
then he will not be successful in his application. He who comes to equity must do equity also
applies.

TUTORIAL ASSESSMENT

1. Francis is a former manager of GB Bank Inc. which operates in Antigua. He was

dismissed from GB Bank Inc. which alleged that he established credit card relationships
with certain telemarketers in the United States and that he had fraudulently authorized
payments to these telemarketers totalling over US$700,000 which has exposed the Bank
to potential losses of over US$2,000,000.
Francis owns bank accounts in Antigua, Miami and Hong Kong. During the period of the
alleged transactions, he lodged US$250,000 to his account in Miami and an undisclosed
amount to a Hong King account. He has deposits of US$197,000 in his Antigua account.
GB Bank Inc. has filed proceedings in the High Court of Antigua claiming damages for
breach of contract, conspiracy to defraud and deceit. GB Bank Inc. consults you,
expressing the fear that Francis’ account in Antigua and other countries will be removed,
making it impossible for GB Inc. to enforce any judgment debt obtained against Francis.
Advise GB Bank Inc.

2. Real Law Tutors Ltd (RLTL) produces instructional DVDs of law lecturers and
accompanying text books for the purpose of teaching law to students by distance

16
 learning. Wesley, a senior member of RLTL, is employed to develop new teaching
materials. His contract requires him not to work for any other firm of law tutors during
the period of his contract and for one year thereafter. Wesley resigns with three years left
to run on his contract and accepts an offer of employment with HP Law Tutors Ltd
(HPLTL).
All the materials that Wesley had been working on have disappeared from the office and
RLTL suspect that they may now be in the possession of HP. RLTL also suspects that HP
is making unauthorized copies of its instructional DVDs and text books.
RLTL fears that Wesley and HP may destroy evidence in their possession which may
support RLTL’s claim for breach of copyright and breach of confidence if they were
made aware of RLTL’s plans to litigate.
Advise RLTL.

Defences

3. Dennis is the occupier and proprietor of 5 of the 15 shops in a shopping mall. He utilizes
all 5 of the shops as a church and has been doing so for 8 years. Church services are held
several times a week and are characterized by loud music and preaching. The large
congregation uses most of the mall parking spaces whenever it assembles. The
proprietors of Strata Plan No.007, who are the occupiers and proprietors of the remaining
10 shops, have instituted proceedings to prevent Dennis from operating the church.

Dennis maintains that the other proprietors knew, from the time of his application to
purchase the 5 shops that he was going to operate a church at the location. He alleges that
his church operations began at that location from the time he purchased the shops 8 years
ago and that he has duly paid the required monthly maintenance fees.

The other proprietors complain that:

a) Dennis is in contravention of the mall’s by-laws which prohibit the use of the mall as a
church; and

b) The operation of the church has caused great inconvenience and loss to the claimants and
unreasonably interferes with the use and enjoyment of the car park.

Advise the other proprietors.

17