Business, Legal & Accounting Glossary
A court decision that is intended to prevent harm–often irreparable harm–as distinguished from most court decisions, which are designed to provide a remedy for harm that has already occurred. Injunctions are orders that one side refrain from or stop certain actions, such as an order that an abusive spouse stay away from the other spouse or that a logging company not cut down first-growth trees. Injunctions can be temporary, pending a consideration of the issue later at trial (these are called interlocutory decrees or preliminary injunctions). Judges can also issue permanent injunctions at the end of trials, in which a party may be permanently prohibited from engaging in some conduct–for example, infringing a copyright or trademark or making use of illegally obtained trade secrets. Although most injunctions order a party not to do something, occasionally a court will issue a “mandatory injunction” to order a party to carry out a positive act–for example, return stolen computer code.
An injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the court’s order. In some cases, breaches of injunctions are considered serious criminal offences that merit arrest and possible prison sentences or death.
An injunction is a court order requiring that someone desist from doing something (prohibitory injunction), or that they do a particular act (mandatory injunction). Injunction are equitable remedies and as such, they are awarded at the discretion of the court and the bars to equity may prevent the remedy being granted. The High Court has the power to award an injunction under section 37(1) Senior Courts Act (1981) and the County Court has the power under section 38 Country Courts Act 1984.
Non-compliance with an injunction puts one in contempt of court and liable to imprisonment, sequestration of property or a fine.
An injunction may be awarded at the following stages of litigation:
Injunction, is a provisional remedy granted to restrain activity on a temporary basis until the court can make a final decision after trial. It is usually necessary to prove the high likelihood of success upon the merits of one’s case and a likelihood of irreparable harm in the absence of a preliminary injunction before such an injunction may be granted; otherwise, the party may have to wait for trial to obtain a permanent injunction.
In the United States, a temporary restraining order (TRO) may be issued on a short-term basis. A temporary restraining order usually lasts while a motion for a preliminary injunction is being decided, and the court decides whether to drop the order or to issue a preliminary injunction.
A temporary restraining order may be granted ex parte, that is, without informing in advance the party to whom the temporary restraining order is directed. Usually, a party moves ex parte to prevent an adversary from having notice of one’s intentions. The order is granted to prevent the adversary from acting to frustrate the purpose of the action, for example, by wasting or hiding assets (as often occurs in dissolution of marriage) or disclosing a trade secret that had been the subject of a non-disclosure agreement.
Sometimes, a court grants an apprehended violence order (AVO) to a person who fears violence or harassment from their harasser. A court can issue an apprehended violence order if it believes, on the balance of probabilities, that a person has reasonable grounds to fear personal violence, harassing conduct, molestation, intimidation, or stalking. If a defendant knowingly contravenes a prohibition or restriction specified in the order, he or she can be subject to a fine, imprisonment, or both.
This injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity). For example, money damages would be of scant benefit to a landowner who wished simply to prevent someone from repeatedly trespassing on his land.
After the United States government successfully used an injunction to outlaw the Pullman boycott in 1894 in the case of In re Debs, employers found that they could obtain federal court injunctions to ban strikes and organizing activities of all kinds by unions. These injunctions were often extremely broad; one injunction issued by a federal court in the 1920s effectively barred the United Mine Workers of America from talking to workers who had signed yellow dog contracts with their employers.
Unable to limit what they called “government by injunction” in the courts, labour and its allies persuaded the U.S. Congress in 1932 to pass the Norris-LaGuardia Act, which imposed so many procedural and substantive limits on the federal courts’ power to issue injunctions as to effectively prohibit all federal court injunctions in cases arising out of labour disputes. A number of states followed suit and enacted “Little Norris-LaGuardia Acts” that imposed similar limitations on state courts’ powers. The courts have since recognized a limited exception to the Norris-LaGuardia Act’s strict limitations in those cases in which a party seeks injunctive relief to enforce the grievance arbitration provisions of a collective bargaining agreement.
The Family Law Act of 1996 regulates the two main types of injunctions which focus on domestic violence and the regulation of the family home and who should be living there.
This is an order that prevents one of the parties in a relationship from using or threatening violent behaviour against the other or their child in order to protect the health, safety and wellbeing of the partner, child or both.
The order can prohibit the respondent from molesting the applicant, it can prohibit the respondent from molesting a child of the applicant, or can feature both of these prohibitions.
An occupation order regulates who can or cannot live in the family home. Therefore, if you have been the victim of domestic violence and do not feel safe continuing to live with the partner or you have left the family home because of violence but want to return, the best way to achieve this is to apply for an occupation order.
It can also be seen by these definitions that the two types of injunctions covered by the Family Law Act 1996 – non-molestation orders and occupation orders – are similar, are often used together and are aimed primarily at those who have been or fear they may be the victim of domestic violence.
In deciding whether to grant an occupation order the court will apply the balance of harm test. In this, the court will effectively determine who potentially has most to lose. It will consider the harm potentially suffered by the applicant or relevant child if the court does not make an order. It then compares this with the potential harm suffered by the respondent if the order is made.
If the balance of harm test is satisfied then the court will make the order. However, even if it does not lead the court into making an order, there is still the chance for the applicant to get the order approved by the court, as it has to examine all the circumstances of the case. This necessitates the court having regard to:
If you want to apply for either or both of these orders, your solicitor should be able to apply on your behalf or, if you prefer, you can contact your local County Court or Magistrates Court direct to get the forms necessary to apply. Some injunctions may require the person concerned to apply to the High Court.
You will have to make a sworn statement, an Affidavit, which will set out why you consider the injunction to be required. Although most hearings will be in public with the respondent given notice to attend, in some cases, especially with this type of injunction with the health and safety of the applicant being at potential risk, some applications can be applied for as an emergency. These are known as “without notice” applications, usually made at short notice and in these instances, the attendance of the respondent is not required.
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This glossary post was last updated: 24th April, 2020 | 4 Views.