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
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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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