(DOWNLOAD) "Interlocutory Injunctions: Revisiting the Three-Pronged Test." by McGill Law Journal # eBook PDF Kindle ePub Free

eBook details

Title: Interlocutory Injunctions: Revisiting the Three-Pronged Test.
Author : McGill Law Journal
Release Date : January 22, 2008
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 353 KB

Description

The three-pronged test that courts in Canada and in other jurisdictions apply in considering applications for interlocutory injunctions is well established: the applicant must demonstrate that (1) there is a serious question to be tried, (2) he will suffer irreparable harm if denied the relief, and (3) the balance of inconvenience pending trial favours him. This article examines the premises underlying this test. First, the test presumes that the hearing on an application for an interlocutory injunction is conducted at a time when only incomplete and disputed evidence is available to the court. From this premise flows the low threshold of determining whether there is a serious question to be tried. Second, the test presumes that the remedy is sought to preserve the rights of the parties pending trial. From this arises the necessity of determining whether the harm will be reparable at trial and where the balance of inconvenience lies in the interim. The author argues that these assumptions are inaccurate for many applications for interlocutory injunctions--applications that involve no material facts in dispute or that finally dispose of the dispute between the parties. In all these cases, it is argued that the three-pronged test is ill-conceived and that the court should adjudicate primarily on the merits. The author closes his analysis by proposing a general approach to assess the importance to be given to the merits and the balance of inconvenience in any given case. He bases this approach on where that case falls with regard to its potential end-result and its degree of factual complexity.