Law - Civil Procedure (Hong Kong) Essay Example | Topics and Well Written Essays - 1500 words

Law - Civil Procedure (Hong Kong) - Essay Example James (1854) 5 De G.M. & G. 876 and its brethren (Novello v. James (1854) 5 De G.M. & G. 876). This undertaking is not given to the party against whom the injunction is sought, but to the court who is overseeing the proceedings from which the injunction came (Zuckerman, 1994, p. 546). The reason that the plaintiff has to give this undertaking is in the event that either the injunction is dismissed for any reason, or that the defendant wins in a trial on the merits. In either of those cases, it must be shown that the defendant was kept from exercising his or her lawful rights, and was harmed by this. Therefore, the money given as an undertaking must be equivalent to what monetary damage that the defendant would experience because of this loss of rights. This undertaking is a safeguard for defendant’s rights, as the court is sworn to give both parties equal treatment, and it is a matter of â€Å"elementary fairness† that this undertaking is given (Kirklees Borough Council v. Wickes Building Supplies Ltd. [1991] 3 W.L.R. 985). However, the entitlement to damages is not independent of the undertaking (Fletcher Sutcliffe Wild Ltd. v. Burch [1982] F.S.R. 64), and whether or not the defendant is entitled to the undertaking is not decided by the material event, such as the injunction being dismissed or the defendant prevailing on the merits, but, rather, is a discretion of the court (Attorney General v. Albany Hotel Co. [1986] 2 Ch. 696). This discretion is not limited in any way (Cheltenham and Gloucester Building Society v. Ricketts [1993] 1 W.L.R. 1545. This means that the court does not necessarily have to grant the defendant the damages that have been deposited, even if the defendant prevails on the merits and even if the injunction is dismissed, and this discretion about whether or not to award the defendant is essentially unbridled. This brings up the question of what the undertaking is meant to compensate. The injunction usurps the defendantâ€⠄¢s rights in some way, and this is a harm that is suffered by the defendant. For instance, perhaps the defendant is enjoined from keeping open his business after he has already opened it, because the plaintiff seeks an injunction based upon the fact that defendant is, say, operating a business that is not zoned for a particular area. As it turns out, the zoning for the area is proper, and the existence of the business in this area is also proper. Yet Defendant has now lost several days or even weeks of business. This is a clear harm to the defendant, yet the court does not have to award the defendant the undertaking if the court deems this to be fit, and this discretion is not limited, therefore the defendant probably could not prevail on an appeal on the matter, as appeals courts are loathe to interfere with judicial discretion. This is obviously an injustice, but, since an undertaking is not a function of tort, criminal or contract law, it is difficult to classify it, so it is di fficult to state what is proper when examining judicial discretion on the issue. One clear way that the defendant may get the undertaking would be when it is clear that the injunction should never have been granted (Norwest Holst Civil Engineering Ltd. v. Polysius [1987] CA Transcript 644. However, there is a difficulty in ascertaining when an injunction should