British Caribbean Bank Ltd v Attorney General
| Jurisdiction | Belize |
| Judge | Sosa, P.,Mendes, J.A.,Pollard, J.A. |
| Judgment Date | 03 August 2012 |
| Neutral Citation | BZ 2012 CA 13 |
| Docket Number | Civil Appeal 6 of 2011 |
| Court | Court of Appeal (Belize) |
| Date | 03 August 2012 |
Court of Appeal
Sosa, P.; Mendes, J.A.; Pollard, J.A.
Civil Appeal 6 of 2011
Lord Goldsmith QC and A Arthurs Martin for the appellant.
D A Barrow SC, L M Young SC and M Perdomo for the respondent.
Injunction - Interlocutory — Perpetual injunction — General principles for grant of injunction.
I am firmly of the opinion that this appeal should be dismissed to the extent that the judge below correctly granted injunctive relief to the respondent but that it should be allowed to the extent that the duration of such relief was not appropriately limited by the terms of the judge's order.
I have read, in draft, the judgments of both Mendes and Pollard JJ.A.
I am content, for the sake of verbal economy, to adopt as my own the former's summary of this appeal's factual background, very broadly defined, as contained not only in paras 33–60, inclusive, below, but also in paras 29–32, inclusive, below, and 61–77, inclusive, below.
In the court below, Legall, J. granted an interim injunction of sorts. It was not, however, one meant to last only until trial of the substantive claim or further order. Rather, it was, unusually, one intended to remain in place
‘until the hearing and determination of the local claim for compensation made on 15 October, 2009 by [the appellant], and until any subsequent proceedings in the local courts in relation to the said local claims are heard and determined.’
(See para 92 of the judgment of Legall, J.)
In fairness to Legall, J., however, it should be underscored that his order was not one for a perpetual injunction. In this respect, the injunction granted may usefully be contrasted with that being sought in the substantive claim, the proposed wording of which latter injunction was reproduced by Legall, J. at para 16 of his judgment. The latter injunction is one which, in my view, would, on its face, continue indefinitely and would properly be described as a perpetual one, which, as defined by the learned contributors to Atkins' Court Forms in Civil Proceedings, 2nd ed., vol. 22 (1980 issue), title INJUNCTIONS, at para 2, is a restrictive injunction which permanently precludes infringement of rights and, save by consent of the restrained party, is only granted after the final determination of those rights.
Legall, J., whilst not granting a perpetual injunction, may have appeared to be seeking to palliate, in a sense, the grant of injunctive relief likely to last beyond the trial of the substantive claim when he referred, at para 90 of his judgment, to the fact that he was not restraining the appellant indefinitely. But, to my mind, he had not demonstrated that the circumstances of the application were such as to place him in a position to grant a perpetual injunction; and it was therefore of no relevance whatever that he was not, in fact restraining the appellant indefinitely. What seems to me to have occurred here is that the judge lost sight of the House of Lords' clear reminder in American Cyanamid Co v. Ethicon Ltd [1975] A.C. 396 that the grant of an interlocutory injunction is a remedy that is not only discretionary but also temporary (p. 405, letter D) and, of fundamental importance, temporary in the sense that its duration should extend only up to the resolution of pertinent issues at the trial (p 406, letters D-E). In my view, therefore, Legall, J. erred egregiously in omitting to grant an interim injunction to last only until trial or further order.
I wholly concur in the view of Mendes, J.A. that, in an appeal such as this one, i.e. one against an order made by a judge in the exercise of his discretion, the Court can do no better than to take guidance, as regards its limited function, from the speech of Lord Diplock in Hadmor Productions Limited v. Hamilton and Others [1983] 1 A.C. 191, 220, a decision of the House of Lords. I fully recognise the relevance in the present appeal of the entire passage set out by Mendes, J.A. at para 78, below; but, for present purposes, I would limit myself to emphasising only the latter portion of that passage, which reads:
‘Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside [for this reason or for others set out earlier in the passage quoted by Mendes, J.A. at para 78, below], that it becomes entitled to exercise an original discretion of its own.’
It is my respectful opinion that the judge below, in deciding to grant an interlocutory injunction in the terms in question, made a decision which was aberrant to the degree identified by Lord Diplock in the passage which I have just quoted. Put slightly differently, it was a decision departing so sharply from the accepted standard that no reasonable judge mindful of his duty to act judicially could have arrived at it. The error of the judge, as I see it, is one which appears ex facie on the order (as set out in his judgment) and about whose extreme degree of gravity there can be neither doubt nor useful argument. I consider that it is an error which suffices by itself to warrant the setting aside of the order of Legall, J. for the interlocutory injunction.
That said, it needs further to be pointed out that I agree with the view of Mendes, J.A. as to the impact on Legall J's grant of the injunction of the several events which have supervened and which are set out in detail by the former at paras 71–77, below. Bearing in mind what Lord Diplock said in the passage from Hadmor Productions Limited quoted at para 78, below, I readily coincide in the conclusion of Mendes, J.A. that the decision handed down by this Court on 24 June 2011 in British Caribbean Bank Limited v. Attorney-General and Anor and Boyce v. Attorney-General and Anor, Civil Appeals Nos 30 and 31, respectively, of 2010, has, in and of itself, had the ultimate effect of placing this Court in a position to set aside the order of Legall, J. and exercise an original discretion of its own in this matter. I have, of course, already adumbrated above that the very same goes, as far as I am concerned, for Legall J's error in granting an interlocutory injunction other than ‘until trial or further order’ (without suggesting, of course, that there is any magic in that particular phraseology).
It is right, as I understand Mendes, J.A. to be saying at para 81, below, that the judge below should have adopted (and now this Court, in exercising its own original discretion in this matter, should adopt) the approach laid down by the House of Lords in American Cyanamid, cited above, as explained in National Commercial Bank v. Olint Corp [2009] U.K.P.C. 16. My own respectful view is that Legall, J. displayed a clear understanding of, and adhered to, the essentials of that approach. As he noted at para 21 of his judgment:
‘At this interlocutory stage, the court … must be satisfied that the claim is not frivolous or vexatious, that there is a serious question to be tried.’
This faithfully reflected the words of Lord Diplock in American Cyanamid, at p 407, letter G.
At para 48, having determined that there were, indeed, serious questions to be tried, Legall, J. quite rightly said:
‘… the next question is whether damages would be an adequate remedy’
and he went on to make it clear that the proper concern must be as to whether damages would be such a remedy to the claimant as well as to the defendant.
At para 49, Legall, J. left no doubt as to his full awareness of the need for him to ‘assess whether granting or withholding an injunction is more likely to produce a just result’. And, in this regard, the judge made due reference to the Privy Council's slight but welcome elaboration on the relevant principles in Olint, at para 16.
Despite what strikes one as mixed signals in Lord Diplock's speech in the American Cyanamid case as to the precise point of time at which there should arise the question ‘Where does the balance of convenience lie?’, I consider that, from a strictly practical standpoint, the better view (or signal) must be that that point is the one at which judicial doubt arises as to ‘the adequacy of the respective remedies in damages available to either party or to both’ (p 408, letter E). (The conflicting signal, for completeness, is that given by Lord Diplock at letters A-B on the same page.) Legall, J. was manifestly of the same view as I am: see para 50 of his judgment. He addressed the question only after reaching the point where he felt doubt as to the adequacy of damages as a remedy for both parties.
He noted, in this regard, the view of Lord Diplock as to the variety of matters relevant, but best left unlisted, at this stage of the judicial exercise (p. 408 of the cited report of American Cyanamid), as expanded upon by Lord Hoffmann, writing for the Board, in Olint (at para 18).
To reiterate, then, my own conclusion is that Legall, J. kept all relevant principles identified in American Cyanamid and Olint in the forefront of his mind in reaching his decision in the instant case.
Where I do, however, find myself again in substantial agreement with Mendes, J.A. is in his criticism of the failure of the judge below to address full square ‘the question whether there was a triable issue that it would be oppressive and vexatious to permit the arbitration to proceed’: para 69, below. The former's analysis of the case-law relating to the pertinent...
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