Ad Interim Injunction: Stop What You're Doing!

As it is commonly known, an injunction is an order of court either to forbid the initiation or the continuance of some act or state of affairs (a prohibitory injunction) or to command that an act be done (a mandatory injunction) (MBf Holdings Bhd v East Asiatic Co (Malaysia) Bhd [1995] 3 MLJ 49).

The Court's jurisdiction to grant an injunction is provided in Section 50 and 51 of the Specific Relief Act 1950 as follow:

Section 50

Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

Section 51 (1)

Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any period of a suit, and are regulated by the law relating to civil procedure.

This article focuses mainly on injunctions that are prohibitory in nature; the terms interlocutory injunctions and interim injunctions are synonymous and usually used interchangeably.

Introduction to Injunctions

Interlocutory injunctions are usually granted to continue until the disposal of the main action or until further order by the Court to preserve the status quo between the parties in the meantime.

Order 29 Rule 1 of the Rules of Court 2012 ("ROC 2012") provides the following:

An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party's originating process, counterclaim or third party notice, as the case may be.

This means that the application for an injunction may be made at any time and it is not necessary for the relief to be included in a claim for a party to make an application of the same. As long as the application for an injunction arises out of or is incidental to the other relief sought, the court may grant an injunction.

An application for an interim injunction may be made ex parte in the case of urgency.

This ex parte injunction automatically lapses 21 days from the date it is granted and cannot be extended by the Court (Cheah Cheng Lan v Heng Yea Lee & Ors [2001] 1 MLJ 433). Therefore, according to Order 29 Rule 1(2BA) ROC 2012, the Court must fix an inter partes hearing within 14 days from the date of the order.

In order for a party to avoid having to make a fresh application upon the lapse of the 21-days period, a party may apply to the Court for an ad interim injunction, in which the Court has jurisdiction to grant pending the inter partes hearing, even if it is not within 14 days of the making of such order.

The Latin phrase ad interim literally means “in the time between".

The test for the grant of ad interim injunction

The general test for the Court to grant an interim injunction is provided in American Cyanamid Cov Ethicon Ltd [1975] AC 396.

However, where an application is made by a party for an ad interim injunction, the grant of an ad interim injunction is almost always automatic.

Therefore, parties would normally agree to an ad interim injunction pending the inter partes hearing (RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3 CLJ 83). However, in Pentamaster Instrumentation Sdn Bhd v QAV Technologies Sdn Bhd & Ors [2017] 5 CLJ 736, the High Court decided that there are instances in which an ad interim injunction may not be granted, that is:

1. The status quo need not be preserved by an ad interim injunction; or
2. When irreparable harm may be caused to the Defendant by the grant of an ad interim injunction.

In considering whether the status quo between parties shall be preserved, the Court will look at whether damages would be an adequate remedy.

This includes taking into account the credit, goodwill and business reputation of the party (Hansol KNM Greentech Sdn Bhd & Anor v Kualiti Alam Sdn Bhd & Anor (22-NCvC-854-12/2018).

However, it was also stated that:

"The above two exceptions are not exhaustive because the Court has the discretionary power under s.51(1) SRA to decline to follow the general rule based on the particular facts of the case in question."

Procedure

The application for an injunction shall be made by a notice of application supported by an affidavit (Order 29 Rule 1(2) ROC 2012). Where the application for injunction is made ex parte the procedures are more stringent in that:

Order 29 Rule 1(2A)

The affidavit in support must contain a clear and concise statement of-

1. The facts giving rise to the claim;
2. The facts giving rise to the application for interim injunction;
3. The facts relied on to justify the application ex parte, including details of any notice given to the other party or, if notice has not been given, the reason for not giving notice;
4. Any answer by the other party (or which he is likely to assert) to the claim or application;
5. Any facts which may lead the Court not to grant the application ex parte or at all;
6. Any similar application made to another Judge, and the order made on that application; and 
7. The precise relief sought.

In general, when making an application for injunction, the party must provide the Court with full and frank disclosure, whether or not such disclosure might affect its case.

The application must be made promptly and the party applying for the injunction must be equitable as injunctions are equitable remedy.