Supreme Court
Action No. 210 of 1978
6th January, 1979
Staine, J.

Dean Barrow for the Plaintiff
Mrs. L. M. Young-Barrow for the Defendant.

Application for interlocutory injunction - Nuisance - Applicant need not prove prima facie case - Only that there is a serious issue to be tried and that the action is not frivolous and vexatious - Court must consider where balance of convenience lies and attempt to maintain status quo - If this can be done by awarding damages to Plaintiff, he will not be granted injunction - If this cannot be done, Court to look at possible harm to Defendant - In instant case, serious issue to be tried - If status quo to be preserved, damages will not compensate - Interlocutory injunction granted subject to undertaking to abide by any damages Court may award.

J U D G M E N T

This case concerns an application for an interlocutory injunction to prevent the Defendant, his servants or his agents from continuing to build and maintain a pier and commercial marina in contravention of law and so as to be a nuisance to the Plaintiff.

The Writ commencing this Action was filed on the 30th day of October 1978 and the motion for an injunction was filed on the same date. In support of the motion two Affidavits have been filed on behalf of the Plaintiff and one on behalf of the defendant.

Briefly the Affidavits filed on behalf of the Plaintiff allege that the building of the pier and marina are in contravention of the law and constitute a nuisance to the Plaintiff. The Defendant, by his affidavit, disputes this. I have also had the benefit of the arguments of learned Counsel for the Plaintiff who referred the Court to the case of American Cyanamid v Ethicon Ltd. (1975) 2 W.L.R., a decision of the House of Lords delivered by Lord Diplock and concurred in by four law lords.

This case has somewhat changed the law in regards to interlocutory injunctions in that it was previously thought that to succeed in an application for an interlocutory injunction an applicant had to prove to the Court that he had a prima facie case. The Cyanamid decision makes it clear that all the Court has to be satisfied of is whether there is a serious issue to be tried, and that the action is not frivolous or vexatious. Once that point is reached the Court must then decide where the balance of convenience lies and attempt to maintain the status quo. If this can be done by awarding damages to the Plaintiff, he will not be granted an injunction. If this cannot be done, then the Court looks at the possible harm to the Defendant in enjoining him from doing something which, when the action is finally tried, it may be found on the evidence then available, that he is entitled to do; hence the practice of giving an injunction only upon the giving of an undertaking to abide by any damages the Court may award at the hearing of the action. Counsel for the Defendant has submitted that the law in relation to the granting of injunctions has not been changed by the Cyanamid case. She argues that all that has changed is the evidential burden. If by the evidential burden is meant that the burden on an Applicant seeking an interlocutory injunction is now lighter, I readily agree. Throughout the judgment Lord Diplock has been at pains to stress that the duty of the Court on an application for an interlocutory injunction is not to attempt to resolve the issue on evidence which may be incomplete, untested and not subject to cross-examination. For that reason, I do not consider that upon the hearing of this motion it was necessary to attach to the Affidavits details of the alleged town planning scheme. The appropriate time for such evidence is when the Action is being tried. Nor need the Court consider that the pier withstood one hurricane in 1978, and that, according to the weather bureau, the official hurricane season is from June to November. It may be that expert testimony could show it is possible for a Hurricane to occur outside of the official hurricane season.

While it may be that Clerk and Lindsell on Torts have critized the decision in Cyanamid, it must not be forgotten that this decision was the unanimous decision of a full House of Lords, without a dissenting decision, and it has been followed in Fellowes v Fisher (1975) 2 A.E.R. 829 and Bryanston v De Vries (1976) 1 A.E.R. 25.

The question I have to ask in this case is whether this is a case for damages or injunction, and whether the status quo should be maintained.

Clearly, on the strength of the Affidavits there is a serous issue to be tried. And if the status quo is to be preserved I do not think damages will compensate. The Defendant, in building a pier and marina, is embarking on a new venture and if an injunction is granted all that will happen, if the issue is decided in his favour, is that he will lose the use of it temporarily and its completion would be delayed.

I would grant the application for an interlocutory injunction, subject to an undertaking being given to abide by any damages the Court may award.

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