|Methods and techniques|
According to the prohibitory injunction, the defendant has to refrain from an action. One of the examples is that the injunctions can be expended in the family law context in a case to prevent "person one" from passing within a given radius of "person two's" home.
Alternatively, when the defendant uses land in an inappropriate way, leading water to leak into the land of another person, order by way of prohibitory injunction might be made by a court - stopping the activity of the defendant, which is leading water to escape into the other person's land.
Types of the injunction
Injunctions can be classified according to the way how they achieve their goals. One of the examples can be an injunction which is built in the way to stop some kind of activity. Thereby a group of people can be required to stop demonstrating on a property which belongs to another or more appropriately for our purposes, a fiduciary might be ordered to depart from acting in breach of his duty. That type of injunction, named a prohibitory injunction can be then characterized as having a negative effect. By contrast, a mandatory injunction expressed is in the way that it orders some kind of activity to be carried out.
Prohibitory and mandatory injunctions
Difference between prohibitory and mandatory injunctions are:
- a prohibitory injunction restraining the defendant from doing something,
- a mandatory injunction demands from the defendant to do something.
An injunction is prohibitory or mandatory if is strictly speaking about a matter of substance, not about the form of words used. Thus, an order restraining is mandatory to the defendant from not doing something. An order demanding is prohibitory for the defendant to stop doing something. The difference can be meaningful because a claimant is supposed to enunciate a mandatory order in positive terms, however, a mandatory order is much harder to obtain than a prohibition order.
Reference to the prohibitory injunction that is the primary remedy does not mean that it will never be refused.
There is two main refusals ground :
- the claimant has acted inequitably,
- the claimant has acquiesced in the wrong.
- (A. Hudson 2005)
- (G. Moffat 2005)
- (D. Emmet 2012)
- ( A. Burrows 2013)
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Author: Alicja Ryszka
This article is based on legislation acts
Please check current legislation before using knowledge from this article.