Thursday, January 28, 2016

Interlocutory Injunctions

Judges have enormous power and can make all sorts of order that will, as necessary, be backed up by force.

But just because a judge has power does not mean the judge will use that power.

Judges speak softly but carry a big stick – the power of the Court is used carefully and only as absolutely needed.

This last point is very clear when considering enforcing legal rights before a trial
Suppose you made a deal to buy a house.  You spent a lot of time and money getting to the point where you made the deal.  You are excited about moving in and then, at the last minute, and without any good reason, the seller of the house says they won’t sell.  Obviously you are deeply disappointed.  But will a judge order that the sale close and you get the house right away?

Probably not.

A judge certainly has the power to order that the house deal close but, as a general rule, judges will make orders requiring that something be done right away and before a trial (which is almost always a long time off) only in very rare cases.

To grant an interlocutory injunction, which is the sort of order requiring the house deal to close right away, a judge has to find three things are proven:

                (a) that the claim for relief is not frivolous and there is a serious question to be tried;
(b) that the party seeking the interlocutory injunction will suffer irreparable harm which cannot adequately be compensated for by damages if the order is not granted; and
(c) that the balance of convenience favours the granting of the order.

Usually the first part of this test is met – most cases in court are “not frivolous”.  But the second two parts are difficult.  Irreparable harm is hard to show.  Yes, you are disappointed in not getting the house but is there somewhere else to live for now?  Is this house so special that no other house will do?  Won’t money be enough to set everything right again? Balance of convenience can also be an issue – presumably the house seller has some reason for not selling and you have to show you are more put out than the seller, which may not be obvious.

Judges are cautious about giving injunctions before a trial because until a trial is held it may be that not all the facts have come out.  And, in the house case, for example, once the injunction has been granted and the house deal closes, the trial becomes sort of irrelevant.  Even if you go to trial who wants to turn around a house deal years later?  The interlocutory injunction  would have the effect of deciding the case.

As I have written before, the law is a blunt instrument – it’s probably best that judges are cautious and  careful about using their fullest powers.

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