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    CCP Unit 4

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    mwangalamazchiwala
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    CCP Unit 4

    Uploaded by

    mwangalamazchiwala
    5 views8 pages
    As described

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    CCP unit 4

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    As described

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    5 views8 pages

    CCP Unit 4

    Uploaded by

    mwangalamazchiwala
    As described

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
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    INTERLOCUTORY

    POCEEDINGS
    UNIT FOUR
    INTRODUCTION
    Interlocutory proceedings are court hearings that focus on a specific matter related
    to a trial during the life cycle of the case
    Interlocutory hearings, are like mini hearings within the main proceedings. One
    party triggers them by making an interlocutory application, asking the court to
    make certain orders.
    Court orders are a declaration made by a Judge, commanding something to be
    done, or prohibiting certain activity
    Interlocutory applications allow you to seek orders to help keep your case on track
    or protect your rights in some way.
    If the orders you seek are urgent, you may request that the interlocutory hearing
    be ‘ex parte’, meaning without the other party attending.
    There is a wide variety of types of interlocutory applications, we will however look
    at two in this particular unit, thus interim attachment of property and interim
    injunctions
    INTERIM ATTACHMENT OF
    PROPERTY
    Refer to Order XXVI of High Court Rules and order XXII R 1 of the subordinate court
    rules
    Where the plaintiff reasonably believes that the defendant is about to dispose of
    property or remove property from jurisdiction with intention to defeat or delay the
    execution of any judgement, the court can order or issue a warrant of attachment of
    property
    The warrant of attachment of property will specifically directed at attaching property
    specified in the application until further order of the court
    The attachment will only be removed if the defendant furnishes security or pays the
    entire sum of money claimed in the summons
    The objective is to prevent a defendant from disposing off assets that may be relied
    upon in executing a judgement against him. The property to be attached has to be
    identified and its value ascertained.
    INTERIM ATTACHMENT OF
    PROPERTY CONT’D
    The application for interim attachment of property is by
    Ex parte summons for an order for interim attachment of property before
    judgement pursuant to Order 26 R 1 of HCR or order 22 r 1 of the SCR
    Affidavit in support of summons
    Ex parte order
    Warrant to attach property
    Certificate of urgency - requiring expedient determination
    Firstly make an application to court to call upon the defendant to furnish security
    The application can be made at the time of commencement of an action or
    thereafter but before judgement – National Airport Corporation Limited v
    Mines Air Services Limited (t/a Zambian Airways) (2011) vol. 2 ZR 180
    Give description of the property as well as an estimated value
    If property attached belongs to a third party, such third party can apply by way of
    notice of claim
    INTERIM INJUNCTIONS
    Oder XXVII of the high court rules and Order XXIII of the subordinate
    court rules
    An injunction is an order of the court that requires a party either to do a specific
    act, or to refrain from doing a specific act.
    Injunction may be classified according to a period of time for which the order
    remains in force.
    Perpetual injunction is the final judgement and is therefore granted after trial
    Interim injunction is provisional measure sought during legal proceedings, before
    the court has had the opportunity to hear fully the evidence on both sides. It is
    temporal
    INTERIM INJUNCTIONS
    • Principles of injunction law – AMERICAN CYNAMID COMPANY V ETHICON LIMITED (1975)
    1. SERIOUS QUESTION TO BE TRIED AT TRIAL – the claim must not be frivolous or vexatious
    and must have some prospect of succeeding. There has to be an arguable case
    2. ADEQUACY OF DAMAGES – the court should consider whether damages are an adequate
    remedy for the plaintiff at trial, if so then an interim injunction can not be granted. If
    claimant can be compensated fully by an award of damages then an injunction should
    not be granted.
     Damages are usually an adequate remedy in claims for breach of contract and/or contracts of
    employment. Examples of when they are inadequate are:
     Defendant is unable to pay the same ;likely to be awarded at trial
     The wrong is irreparable
     The damage is non pecuniary e.g. trade secrets
     Damages would be difficult
    3. REQUIREMENT OF IRREPARABILITY – the right to relief must be clear and it ,must be
    necessary to protect the plaintiff against irreparable harm. Irreparable harm is the harm
    that can not be atoned for by an award of damages and cannot be possibly be repaired.
    INTERIM INJUNCTIONS CONT’D
    4. BALANCE OF CONVENIENCE – the court must be satisfied that the hardship the plaintiff
    will suffer if the injunction is not granted is greater than the hardship the defendant will
    suffer if it is granted. The court should exercise sound judicial discretion and should
    attempt to weigh the injury that is likely to be caused to the parties if the interim
    injunction is granted
    5. PRESERVATION OF STATUS QUO – the object of an interim injunction is to keep things in
    status quo so that at the hearing if the plaintiff obtains a judgement in their favour the
    defendant would have been prevented from dealing in the meantime with property in
    such a way as to render the judgement ineffectual.
    APPLICATION FOR INTERIM INJUNCTION
    applications can be made exparte and an affidavit – these are made without notice due
    to the matter being extremely urgent and for a period of time usually a few days, after
    expiration you can renew with notice to the defendant, thus interparte.
    The order will have a penal notice which informs the other party that failure to comply
    they will be cited for contempt and imprisoned for contempt of court.
    INTERIM INJUNCTIONS CONT’D
    • Discharge of an interim injunction
    • It can be discharged or waived by an application made ex - parte to the same judge who
    made the order.
    • Ground for discharge include – material changes in the circumstances, interference with the
    rights of innocent third parties (affected third parties can apply to have the order varied
    • Types of injunctions
    • Mareva injunction – unique remedy that can be granted before and after judgement. A
    Mareva injunction, also known as a freezing or asset protection order is a type of interlocutory
    injunction which prevents a defendant/respondent from dealing with the whole or part of their
    assets (i.e. by moving assets abroad or dissipating them) while legal proceedings are
    ongoing.
    • Mandatory injunctions- compels a party to perform an act
    • Anton piller order - a court order that provides the right to search premises and seize
    evidence without prior warning. This is intended to prevent the destruction of relevant
    evidence, particularly in cases of alleged trademark, copyright or patent infringements.

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