Preventing Threats: A Brief Guide on Quia Timet Injunctions

Premature, this word is often used by Courts and lawyers to describe disputes which have yet to materialize. But, what if the threat of harm or loss is imminent? Can you stop it?

The short answer is a resounding yes.

There may be times when your Spidey senses tell you danger is coming, there may be times when you even see it coming (from a mile away). This is where a quia timet injunction comes into play. Pronounced as kuai-ya tai-met, the words ‘quia timet’ bear the definition of ‘since he fears’. It is sufficient if you apprehend or anticipate a wrong, yet to be committed.

I. What is a Quia Timet Injunction? 

Quia timet injunctions are distinct from conventional injunctions. Conventional injunctions are normally sought to prevent the continuation or recurrence of wrongdoing. The rationale behind this is to prevent a multiplicity of lawsuits. 

Typically, an action or injunction to prevent an anticipated threat is premature and unlikely to be allowed. 

Take for instance, injunctions against the calling of bank guarantees/performance bonds. An injunction will not be allowed if there has not been an actual call on the performance bond. Even if there are threats, regardless of how imminent. 

The courts call this ‘Unconscionable Conduct’ and there is reasoning behind the Courts’ mood on this issue.  This however, is a story for a different day. I have discussed injunctions against bank guarantees in a separate article Unconscionability: Leave my Performance Bond Out of This. 

Quia timet injunctions hit differently, as in, where there is a practical certainty that substantial damage is imminent, a Plaintiff may seek a quia timet injunction to prevent an apprehended legal wrong, though none has accrued at present (PPES Resorts Sdn Bhd v Keruntum Sdn Bhd [1990] 1 MLJ 436).

Even if the Plaintiff has been fully recompensed for his damages both at law and in equity, the Defendant’s prior activities may still give rise to future causes of action. In this sense, a quia timet injunction serves to avoid multiplicity of legal proceedings and to guarantee finality in litigation between all the parties.

II. Elements required for a quia timet injunction:

In Tan Sri Dato’ Kam Woon Wah v Dato’ Sri Andrew Kam Tai Yeow & Anor [2022] MLJU 424:

“‘There are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action.”

Quia timet injunctions are both prohibitory or mandatory in nature. It can be used to compel someone to take action or to stay their hands before inflicting irreparable harm.

Although the Court’s power to grant a quia timet injunction is purely discretionary under Section 50 of the Specific Relief Act 1950. This discretion is (as it should) exercised sparingly and only where there is a very significant risk of harm (Danaharta Hartanah Sdn Bhd v KSL Reality Sdn Bhd & Benua Kurnia Sdn Bhd & Neraca Prisma Sdn Bhd (Pencelah) [2008] MLJU 460).

There is no real benchmark as to how imminent a threat has to be. Instead, the Courts have oftentimes been seen to place their focus on achieving justice between the parties by taking into account all pertinent factors (Hooper v Rogers [1975] Ch 43 at 50, [1974] 3 All ER 417). 

Naturally, the Courts do not only consider actual evidence of threats. It also looks at the surrounding circumstances and even by the light of the Defendant’s conduct (or rather the darkness of it).

III. A couple of notes before applying for a Quia Timet Injunction:

The Plaintiff must allege and demonstrate that what is happening is intended to violate his rights. For example, in British Data Management plc v Boxer Commercial Removals plc [1996] 3 All ER 707, CA (Eng), an injunction to stop the publication of threatened libel could not be granted as there was no reasonable certainty as to actual words prospectively complained of. Likewise, if the Plaintiff’s fear is purely speculative and there is no evidence of any threatened wrong, the injunction would not be allowed (Senator Lau Keng Siong & Anor v Ng Cheng Kiat [1990] 3 MLJ 417). If it appears unlikely that the wrongdoing complained of will be repeated, the Court will likely only issue a declaration but with the option to apply for an injunction whenever necessary (Stollmeyer v Trinidad Lake Petroleum Co [1918] AC 485).

Undeniably, the Defendant must bear the intention to commit the wrong. The Defendant's denial of any intention to commit the act in question does not, by itself, constitute a sufficient basis for denying relief for the Plaintiff. Similarly, it is also insufficient to justify the granting of an injunction on grounds that in the absence of such intention, the injunction will not injure the Defendant. If the Defendant, despite asserting his rights to carry out the alleged wrongdoing, shows no present intention of committing it but undertakes to give reasonable and sufficient notice if he later attempts to do it, the remedy would be refused (Lord Cowley v Byas (1877) 5 ChD 944).

IV. Situations where a Quia Timet injunction has been allowed:

• To prevent the Court’s jurisdiction from being stultified - PPES Resort Sdn. Bhd. v Keruntum Sdn. Bhd (1990) 1 CLJ 528; (1990) 1 MLJ 436
• To restrain a party from presenting a winding up petition if there is a bona fide dispute about the debt, also known as an anti-suit injunction - Bina Satu Sdn Bhd v Tan Construction [1988] 1 MLJ 533
• To prevent the Defendants from applying for an injunction to frustrate or to restrain the occurrence of any event - Ting Chuen Peng v Yap Kian @ Yap Sin Tian [2016] 7 MLJ 4454
• To restrain the institution or prosecution of a suit in a foreign jurisdiction where this would lead to a multiplicity of proceedings - BSNC Leasing Sdn Bhd v Sabah Shipyard Sdn Bhd & Ors [2000] 2 MLJ 70
• To restrain the use of a registered trademark - George Pathmanathan a/l Michael Gandhi Nathan & Ors v Portcullis (Singapore) Pte Ltd [2018] MLJU 1337
• To restrain someone from using a certain word as their domain name - Syarikat Faiza Sdn Bhd & Anor v Faiz Rice Sdn Bhd & Anor & Another Suit [2019] 7 MLJ 175
• To restrain defendants from further printing, circulating, or otherwise publishing the alleged libels - Datuk Syed Kechik Bin Syed Mohamed v Datuk Yeh Pao Tzu & Ors [1977] 1 MLJ 56
• To prevent a previous noise nuisance that has ceased from occurring again - Lloyds v Symonds [1998] EWCA Civ 511
• To restrain someone from making an inquiry into determining whether a person is incapable of managing himself and his affairs due to mental disorder - Tan Sri Dato’ Kam Woon Wah v Dato’ Sri Andrew Kam Tai Yeow & Anor [2022] MLJU 424
• To restrain someone from further entering private caveats on the lands which would frustrate the appellant's right to deal with the said lands - Official Receiver And Provisional Liquidator Maril-Rionebel (M) Sdn. Bhd. (Formerly Known As Kredin Sdn. Bhd) v. Anafartal Caddesi Sdn. Bhd. [2006] 4 MLJ 1)

Hence, you do not always need to stay Quia-t in the face of danger. Be quick, be vigilant, and file a Quia Timet injunction today.