Written by Richard Wee and Ian Phua.

An Injunction is described as an Order to stop an act. There are many types of Injunction, but generally, the interim/interlocutory injunction is the usual Injunction sought in Court.

The effect of Injunctions include:
a) Prohibitory Injunction

       -An order to restrain a party from doing something (Section 52 Specific Relief Act 1950)

b) Mandatory Injunction

       -An order by court compelling a party to do an act. (Section 53 Specific Relief Act 1950)

The Rules of Court 2012 has a specific provision to guide Judges & Lawyers on the procedure to apply for an Injunction, specifically Order 29. The most quoted would be American Cyanamid v Ethicon [1975] AC 396 where the English Court gave a guide on when to grant an Injunction. In Malaysia, the case of Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & ORS [1995] 1 MLJ 193 adopted and adapted the English legal principles from that American Cynamid case, as follows:-
a) There must be a serious question to be tried.
b) The Court must look at the balance of convenience of both the parties.
 – Losses suffered by the applicant if Injunction is refused.
                                                VS
 – Losses suffered by the defendant is Injunction is granted.

Judges in Malaysia do not grant Injunctions freely as a result of its draconian effect against the party whom Injunction was granted. Usually it would require strong evidence in support of the Plaintiff to bring the Judge to the Plaintiff’s side.

A lawyer would usually file a Writ or an Originating Summon to initiate a suit against the other party. The Suit would have the usual prayers of a mandatory Injunction against the Defendant though in practise, once an interim/interlocutory Injunction is granted, that may see the conclusion of the matter.

The lawyer would also file a Notice of Application (“NOA”) to seek an ex-parte, interim/interlocutory Injunction; and that NOA would be backed up by an Affidavit explaining the reasons for the need to have an Injunction against the Defendant. A Certificate of Urgency is filed together with that NOA to seek leave from the Registrar that the Plaintiff’s case be heard as soon as possible, usually on the very day the NOA is filed.

When this NOA is heard before the Judge and if an Injunction is granted; this is an ex-parte interim/interlocutory Injunctions – which is an order granted without the presence of the Defendant, and is usually granted if the circumstances warrant the Court to intervene quickly. The law demands an undertaking from the Plaintiff that should the Injunction be deemed incorrect later, the Plaintiff must compensate the Defendant. An ex parte interim injunction will only last for 21 days as provided in Order 29 Rule 1(2B) of the Rules of Courts 2012.

According to Order 29 Rule 1(2BA) of the Rules of Courts 2012, about 21 days later, the Court will fix a new date where the Defendant now may appear in Court to contest the Injunction. Amongst lawyers, this is called the Inter-parte Injunction.

Injunction applications amongst the Civil Litigation lawyers is usually seen as tough, particularly since these kinds of applications usually must be filed quickly (sometimes within hours of receiving instructions from the client) and challenging to the lawyer.

In future postings, RWC will comment on popular Injunctions like the Mareva Injunctions, the Anton Piller Injunction & the Erinford Injunction.

Published on 27th July 2020

Photo by Tingey Injury Law Firm on Unsplash

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