Injunction in Malaysia
Content
Research: Interim/Interlocutory Injunction 1. The law on civil procedure governing temporary injunctions is provided in Order 29 Rules of Court 2012. It is to be noted that there is distinction between interlocutory and interim injunction as discussed in the case of Arab Malaysian Corp Builders Sdn Bhd v ASM Development Sdn Bhd [1998] 2 CLJ Supp 169: (a) Interlocutory injunction: An order to preserve a particular set of circumstances pending a full trial of the matters in dispute. (b) Interim injunction: An order in the nature of an interlocutory injunction but restraining the defendant only until after a named day or further order. 2. In granting interlocutory injunctions, the Malaysian courts have consistently applied the principles as decided in the case of American Cyanamid Co v Ethicon [1975] 1 All ER 504. The principles have been laid down by the authority of American Cyanamid Co v Ethicon Ltd [1975] AC 396. The case outlines certain criteria to be considered by the courts prior to grant of an injunction. (i) Serious question to be tried
Firstly, the court needs to have regard to whether there is a serious question to be tried. Therefore, the test again asserts the need for existence of an independent legal action. Where the claimant is relying upon an action unknown in law, the condition would not be satisfied. Otherwise, the hurdle is fairly easily overcome. (ii) Adequacy of damages to the claimant
Secondly, the court needs to consider the adequacy of damages to the claimant. Therefore, it is discussed if the claimant was successful at trial, whether he would adequately be compensated in the form of damages for potential loss he would have sustained had the defendant carried out the wrongful action. If it is considered that damages are an adequate remedy and the defendant is in a position to pay such, then no injunction should normally be granted. Adequacy of damages to the defendant (Undertaking in damages) The next thing to be taken into account is the adequacy of the undertaking in damages as protection to the defendant. When injunction is granted, the claimant would be required to give an undertaking in damages in the event Page 1 of 2
of the defendant being unjustifiably restrained from doing the act prohibited in the injunction. Therefore, the court has to consider the adequacy of those in the event of the defendant being successful at a subsequent trial. (iii) Balance of convenience
Wherever there is doubt as to the adequacy of the remedies in damages available to either of the parties, the question of balance of convenience arises. The court considers which party the balance of convenience favours taking into account the status quo immediately before the application. Of further importance are the merits of the case. All of the above factors are to be determined on the basis of the individual case. The relief is discretionary and that discretion is exercised in light of all the circumstances of the case. 3. The Court of Appeal in Keet Gerald Francis Noel John v. Mohd Noor @ Harun bin Abdullah & 2 Ors [1995] 1 CLJ 293 referring to the classic decision of the House of Lords in American Cyanamid Co v. Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504; [1975] 2 WLR 316 held that a Judge hearing an application for an interlocutory injunction should:(i)
Ask himself whether the totality of the facts presented before him disclosed a bona fide serious issue to be tried;
(ii)
Having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies; and
(iii)
Have in the forefront of his mind that the remedy he is asked to administer is discretionary, intended to produce a just result between the date of the application and the trial proper and to maintain the status quo.
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Firstly, the court needs to have regard to whether there is a serious question to be tried. Therefore, the test again asserts the need for existence of an independent legal action. Where the claimant is relying upon an action unknown in law, the condition would not be satisfied. Otherwise, the hurdle is fairly easily overcome. (ii) Adequacy of damages to the claimant
Secondly, the court needs to consider the adequacy of damages to the claimant. Therefore, it is discussed if the claimant was successful at trial, whether he would adequately be compensated in the form of damages for potential loss he would have sustained had the defendant carried out the wrongful action. If it is considered that damages are an adequate remedy and the defendant is in a position to pay such, then no injunction should normally be granted. Adequacy of damages to the defendant (Undertaking in damages) The next thing to be taken into account is the adequacy of the undertaking in damages as protection to the defendant. When injunction is granted, the claimant would be required to give an undertaking in damages in the event Page 1 of 2
of the defendant being unjustifiably restrained from doing the act prohibited in the injunction. Therefore, the court has to consider the adequacy of those in the event of the defendant being successful at a subsequent trial. (iii) Balance of convenience
Wherever there is doubt as to the adequacy of the remedies in damages available to either of the parties, the question of balance of convenience arises. The court considers which party the balance of convenience favours taking into account the status quo immediately before the application. Of further importance are the merits of the case. All of the above factors are to be determined on the basis of the individual case. The relief is discretionary and that discretion is exercised in light of all the circumstances of the case. 3. The Court of Appeal in Keet Gerald Francis Noel John v. Mohd Noor @ Harun bin Abdullah & 2 Ors [1995] 1 CLJ 293 referring to the classic decision of the House of Lords in American Cyanamid Co v. Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504; [1975] 2 WLR 316 held that a Judge hearing an application for an interlocutory injunction should:(i)
Ask himself whether the totality of the facts presented before him disclosed a bona fide serious issue to be tried;
(ii)
Having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies; and
(iii)
Have in the forefront of his mind that the remedy he is asked to administer is discretionary, intended to produce a just result between the date of the application and the trial proper and to maintain the status quo.
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