Can An Injunction be Lifted Before Trial?

When a court issues an injunction before a trial it’s known as an ‘interlocutory’ or ‘interim’ injunction. Injunctions like this are intended to be temporary. They can be lifted following a full trial of the issues or, if the factual basis on which the injunction was issued significantly changes, they may be lifted ahead of the trial.

The local Bahamas case of Tomlinhess Investments v Lamalot (2024) provides a clear analysis of the principles that govern interim injunctions. As we discuss below, the Supreme Court of the Bahamas was asked to lift an injunction before trial. Relying on well-established legal principles, it refused to do so.

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What is an injunction?

In the Tomlinhess Investments case, the Supreme Court highlighted the basic characteristic of injunctions in the Bahamas as set out in Section 21 of the Supreme Court Act: They are only ever granted at the court’s discretion whenever it is ‘just and convenient’ to do so. The court also made clear that injunctions are part of a whole series of remedies available to litigants in the Bahamas before the final trial takes place. Other remedies include costs orders and orders forcing one party to provide information, inspect a property or pay income from a property until trial.

When deciding whether to grant an injunction, the key historical case to consider is the 1975 English case of American Cyanamid, where what have become known as ‘the three pillars’ of injunctions were set out. Before an interim injunction is ordered the court must be satisfied that:

1. There is a serious issue to be tried – the claim for an injunction should not be frivolous.
2. Financial damages would not be an adequate remedy for the applicant if they ultimately win at trial.
3. The balance of convenience favours the grant of an injunction.

The whole purpose of an injunction is to force a defendant to suspend or continue some act until a full trial of the facts takes place. Remember the injunction will be ordered or refused on incomplete evidence. Often an injunction will initially be granted with only the claimant being heard by the court. Such ex parte applications are sometimes necessary to prevent a defendant thwarting the protection an injunction may provide.

Forcing a defendant to suspend or carry out a particular activity is by any measure an extreme course of action – it curtails freedom of action. For an injunction to be justified, a claimant must be able to show that they could not be adequately compensated in financial damages if ultimately they succeed at trial.

What was Tomlinhess Investments v Lamalot about?

The parties in the Tomlinhess v Lamalot case owned neighbouring properties at Dick’s Point in the Eastern District of New Providence in the Bahamas. In early 2024 the defendant began construction of a dock on the seabed directly in front of their property. The legal proceedings arose because of what the claimant described as the defendant extending the dock outwards and in front of the claimant’s property. An urgent without-notice interim injunction was granted in March 2024. This restrained the defendants from undertaking or continuing construction on the dock or use of the dock on the seabed abutting the claimant’s property.

In April and May 2024 hearings took place to decide whether the injunction should stay in place until the matter was definitively resolved at trial.

At these hearings it was established that the parties had been in an ongoing dispute about the dock since Hurricane Matthew pushed a concrete slab from the seabed abutting the defendant’s property into the seabed abutting the claimant’s property.

The claimant sought the interim injunction to prevent the continued construction of the dock in view of their environmental concerns, breach of property rights, and nuisance. According to the claimant, it was essential that the injunction remain in place until trial because if the defendant was not forced to stop the work immediately the dock was likely to be more or less finished in a matter of days.

The defendant’s case was that the dock was originally constructed sometime before 1966. Since Hurricane Matthew, they had been trying to restore it. There had, the defendant argued, been no significant change to the location or dimensions of the dock. Further, the defendant argued that no part of the dock encroaches on the claimant’s land.

The Decision

First, the court had to decide – had the claimant raised a serious enough issue to merit the granting of an injunction? In the event, the court was satisfied that some – but not all – of the issues raised by the claimant were serious. (For example, the claim that the work on the dock caused interference with the claimant’s reasonable enjoyment of their land by ‘obstructing their view and privacy’ had no merit.)

Second, the court had to consider if granting an injunction would lead to a fairer outcome in the end (that is, after a full trial of the issues had taken place).

In the circumstances, the court was satisfied that after balancing the competing considerations, granting an interim injunction in favour of the claimant was the course of action most likely to enable the court to reach a just decision at trial.

Comment

It is interesting to note that even though the court described the claimant’s case as ‘tenuous’ it still refused to lift the injunction before trial. The judge argued cogently that a failure to grant the injunction would mean the defendant completing the dock and rendering inadequate any potential financial award the claimant might receive. On the other hand, damages would be an appropriate remedy for the defendant. If ultimately successful at trial, damages to compensate the defendant for delay or inconvenience caused by the injunction would be easily quantifiable.

The law relating to interim injunctions that are imposed before the trial of an underlying dispute is by no means an exact science. There is no one-size-fits-all, and the courts have a wide discretion. This was made clear by no less a figure than Lord Diplock in American Cyanamid (1975) when he said:

‘There are no fixed rules as to when an interlocutory injunction should or should not be granted. The relief must be kept flexible.’

At its core, the decision on whether to grant an injunction is based on a prediction: which side is more likely to suffer irremediable prejudice if it turns out that the injunction should not have been granted or withheld in the first place.

This Bahamas Supreme Court case provides a really useful analysis of the law relating to injunctions in a local context. It is noteworthy that even though the judge described the claimant’s substantive case against the construction of the dock as tenuous, it was still correct in the circumstances to continue the injunction until trial. As the claimant pointed out, if no injunction was in place, the dock would be completed within days and the court at trial would be faced with a fait accompli.

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