An Erinford injunction is one of the most common tools used during litigation disputes in Malaysia. Our article explains what an Erinford injunction is the principles for granting it, and how to get it.
What is an Erinford Injunction?
An Erinford injunction is an order of a court preserving the status quo of the parties pending the determination of an appeal by the higher court. It is granted on the application of a party after the court dismisses an interlocutory application by that party.
Under the laws, specifically Specific Relief Act 1950, Malaysian courts including the High Court is given the power and inherent jurisdiction to grant an injunction. An injunction is an order of the court asking someone to do or abstain from doing some acts.
There are several types of injunctions in Malaysia which include quia timet injunction, ad interim injunction, mareva injunction, fortuna injunction, and erinford injunction.
To explain, an Erinford injunction is a type of interlocutory injunction (interlocutory means court order given before the conclusion of a legal proceeding) given by the court to preserve the status quo of the parties pending an appeal against a decision to the appellate court.
To give an example. let’s say a Plaintiff commences legal proceedings against a Defendant to demand and recover debts in the High Court. At the earlier stage, Defendant applies to the court for an injunction to restrain Plaintiff from presenting a winding-up petition against it, that is to prevent it from being wound up (‘Application’).
The High Court, after hearing the matter, dismisses the Application. The Defendant, being dissatisfied with the court’s order, then appealed to the higher court, that is the Court of Appeal by filing a notice of appeal (‘Appeal’). At the same time, the Defendant applied to the High Court for an Erinford injunction to preserve the status quo of the subject matter.
The effect of the preservation of the status quo is that Plaintiff cannot proceed with any winding up petition against Defendant until hearing, determination, and disposal of the Appeal. This is to prevent any successful appeal be rendered nugatory/futile. If any party disobeys the Court’s order, they can be subject to committal proceedings.
Principles for granting of Erinford injunction
The discretion to grant an Erinford injunction is with the Courts and depends on the circumstances of each case. The court when considering an application for granting an Erinford injunction usually takes into consideration a few conditions and is guided by the principles in the English case of Erinford Properties Ltd v Cheshire County Council.
In this Chesire case, the English courts stated a few factors to consider which are:
Balance of convenience
If the Erinford injunction is granted, does it cause more inconvenience to the party applying or to the other party?
Adequate compensation
If it causes inconvenience to the applying party, can the other party be adequately compensated by damages?
Successful appeal
If the appeal against the earlier injunction application is successful, will the appeal be rendered nugatory/futile if the Erinford injunction is disallowed?
During legal proceedings and when considering an application for an Erinford injunction, the trial judge will consider the above factors in deciding the disputes.
How to Apply For Erinford Injunction
An application for Erinford injunction follows the provisions of the Rules of Court 2012. It is by filing court papers known as a notice of application stating the terms of the order that the applicant requests to be granted by the court which should include the Erinford injunction.
The notice is then supported by an affidavit sworn by the applicant stating the disputes between them, the manner/way, and the reasons why the court should grant the injunction.
Differences between Erinford Injunction vs Stay Order
A stay of execution is an order granted by the courts postponing the enforcement of an order. This is usually given after legal actions have concluded where the court has delivered judgement and one party is applying to postpone the order from taking effect pending appeal.
On the other hand, an Erinford injunction is usually given during a case and before the case has concluded and the effect is to maintain the status quo of the parties pending an appeal against dismissal of an interlocutory application. Furthermore, there is no ‘order’ to be prevented from taking effect for an Erinford injunction.
Conclusion
Erinford injunction is an order from the Court usually given in the midst of legal proceedings to maintain legal rights and fairness by preserving the status quo of the parties pending an appeal. If you need any legal advice or legal services, please contact us and we will assist you.
Frequently Asked Questions
1. What is the difference between Erinford injunction and stay of execution?
Erinford injunction is an order given to preserve the status quo pending an appeal against the decision of the court, usually for dismissing an interlocutory application. On the other hand, a stay of execution is an order granted to postpone the enforcement of an order.
2. What are the types of injunction in Malaysia?
There are mainly 2 types of injunctions in Malaysia, that is interlocutory injunction and mandatory injunction. An interlocutory injunction is an order to last till the court action concludes while mandatory injunction generally lasts indefinitely.