THE TURKS & CAICOS ISLANDS Law and Practice Contributed by: Stephen Wilson KC, Dominique Gardiner and Lovelie Luxama, Wilson Wells
6.2 Arrangements for Obtaining Urgent Injunctive Relief Urgent injunctive relief can be obtained on the same day and outside of court hours if circumstances genu- inely require it. A phone call to the Supreme Court Registry during working hours will generally secure an appointment before a Supreme Court judge. Doc- uments such as affidavits, skeleton arguments and draft orders can be sent by email in the first instance, with an undertaking to file at the Registry as soon as practicable. In circumstances of extreme urgency, including outside court hours, applications can be made by video link or over the phone. Where time permits, the attorney representing the party seeking relief should draft: • the originating process (assuming the application is being made in conjunction with the commence- ment of proceedings and not subsequent thereto) – usually a generally endorsed writ of summons setting out brief details of the nature of the claim and the relief sought; • an affidavit sworn on behalf of the applicant setting out the nature of the relief sought, the evidential ground upon which the application is made and an explanation as to why the matter is urgent; • a draft order; and • a skeleton argument setting out the legal basis underpinning the application. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Injunctive relief can be sought on an ex parte basis. Applications for Mareva injunctions and Anton Piller orders are usually made ex parte so as not to tip off the respondent that the application is being made. In cases where notice would ordinarily be required but the application is being made on an urgent basis, the application may be made ex parte on notice. In other words, the respondent will be informed that the appli- cation is to be made and that it will proceed whether the respondent appears or not. In these circumstanc- es, the respondent has no obligation to say anything if they attend or are represented at the application. This is usually the wiser course, although the respondent
An interim injunction can be granted until a specified day and is usually granted where the court is persuad- ed that the applicant would otherwise suffer irrepara- ble harm. Such interim injunctions can be granted ex parte; however, when making such an application, the applicant has the burden of full and frank disclosure. Failure to give full and frank disclosure can itself be a basis for discharging the injunction in due course. A permanent injunction is usually a form of relief sought that, upon determination, will settle the par- ties’ rights and will be in place indefinitely unless it is restricted by the terms of the order or is subsequently removed by a further order of the court. The party seeking a permanent injunction has to demonstrate not only that the present actions of the other party are infringing their rights, but also that it is likely that there will be continuing conduct and consequential damage if the conduct is not restrained permanently by the court. The procedure to be adopted by the court in hearing applications for interlocutory injunctions, and the tests to be applied, are well settled and were laid down by the House of Lords (as it then was) in American Cyanamid Co v Ethicon Ltd (1975) AC 396; (1975) 2 WLR 316. Types of Injunctive Relief The types of injunctive relief that can be obtained include: • an order prohibiting a person from doing some- thing (a prohibitory injunction) or requiring that person to do something (a mandatory injunction); • an order restraining a defendant from remov- ing assets from the jurisdiction that may in due course be attached for the purposes of satisfying the plaintiff’s judgment (commonly referred to as a “Mareva injunction”); • an order requiring a party to provide certain infor- mation; • an order permitting a party’s property to be searched in order to preserve evidence (these are sometimes referred to as “Anton Piller orders”); and • an order preventing a party from commencing or continuing with proceedings outside the jurisdic- tion (referred to as an “anti-suit injunction”).
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