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American Test & Human Rights:


American Test & Human Rights:

The principles governing the grant of an interim injunction were first laid down by the House of Lords in American Cyanamid v Ethicon 1975. This case set out the standard principles on which an interim injunction will be granted:

  • The claimant should have a prima facie (arguable case)
  • Damages would not provide an adequate remedy in the circumstances
  • the court will consider the balance of convenience. if it is equal, then the courts should act to preserve the status quo.

 

Justice Laddie reviewed the principles in the American C decision in the case of Series 5 software v Carpet Cleaning Glasgow 1996. The American C principles were criticised because it was felt that interim injunctions were being awarded too easily. Laddie J stated that, when considering to grant an interim injunction, the court should bare in mind the following:

 

  • granting an injunction is a matter of discretion and depends on all the facts of the case.
  • there is no fixed rules
  • the court should rarely attempt to resolve difficult questions of fact and law.

However, the Human Rights Act 1998 has made an impact on the award of interim injunctions. In light of the HRA, the American C principles can be stated as follows:

 

  1. The claimant should have a prima facie case, as per A v B and C plc (2002), except in breach of confidence cases where issues of freedom of expression are raised – here a higher standard should apply.
  2. Section 12 (3) provides that “no… relief is to be granted as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed” – This was a deliberate deviation from the general principles approach governing the application for injunctions in the American C test. This test regarded it as outside the courts functions at that stage to decide issues of conflicting evidence or difficult questions of law. (para 408)

 


Categorized as: American Test & Human Rights

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