A Quick Guide On Erinford Injunction

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A Quick Guide On Erinford Injunction

May 31, 2021 Corporate & Commercial Disputes 0

A brief history of erinford injunction
Erinford came about when the court realizes there is a need to ensure that a decision (when appealed) to a higher court, will not be rendered of no value or importance if the decision is revered by the higher court, in the sense that there is nothing left for the now winning team to enforce via the decision that was given by the higher court. 

For example:

  1. A won a case against B;
  2. B appeals the decision;
  3. In the intervening period, the subject matter of the dispute was dissipated by A;
  4. B won the matter on appeal, but could not claim the subject matter as A has dissipated the subject matter.

This is where the injunction kicks in B applies to the court in the intervening period to ensure that A does not dissipate the subject matter. 

The principle behind Erionford injunction

The why behind the what can be found in the English case of Erinford Properties Ltd v Cheshire County Council, where the court expounds on why there is a need for such an injunction:

“No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistent with this decision, recognized that his decision might be reversed and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal…But subject to that, the principle is to be found in the leading judgment of Cotton LJ in Wilson v Church, where, speaking of an appeal from the Court of Appeal to the House of Lords, he said, ‘when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory‘…”

Considerations in granting an Erinford injunction

There are two factors that the court will consider before granting an Erinford injunction. As noted by the court in Chellapa a/l K Kalimuthu v Sime UEP Properties Bhd:

“An Erinford injunction will be granted only where there is a likelihood of a successful appeal being rendered nugatory or if the plaintiff would not be adequately compensated in damages for temporary damage between the date of hearing and the date when its appeal is heard… The court has the discretion to grant an injunction and order a stay pending appeal if that is necessary to ensure that the appeal will not be academic.”

Both factors depend on each case’s facts- there are no one-size shoes to fit everything!

Doesn’t all these sound like a  “stay of execution” application? 
A keen-eyed observer will be able to notice that the principles governing the granting of an Erinford injunction mirror that of an application for a stay of execution. In a layman’s term, a stay of execution is an order which if granted, temporarily restrain the winning party from enforcing his/ her rights to the losing party until the appeal is heard and disposed of by the court.  So are there any differences between both of the principles of law?

Yes, there are differences. This was answered in the positive and explained by the court in Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd, where the court states: “In an application for a stay of execution, the court had earlier made an order granting a certain application, which can be executed by the successful party, and the unsuccessful party, after having filed his notice of appeal against the said order, applied for a stay of execution of the said order. However, in an application for an Erinford injunction, the court had earlier dismissed an application, and pending appeal of the said dismissal, the unsuccessful party then applied for a limited injunction pending the appeal. There is no order to be executed by the successful party in this case. Of course, the successful party ought to be free to act despite the pendency of the appeal.”

The difference between the two, therefore, is this: One (after winning the case) has an order that was granted by the court and can be executed by the winning party, while the other does not have one.


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