tag:blogger.com,1999:blog-5574479.post1734977847613595910..comments2024-03-29T06:00:27.896+00:00Comments on The IPKat: While AC says BC, CD beats AB: no interim order to stop fatal termination of IP licenceVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5574479.post-63276385165743567572014-01-13T13:39:40.894+00:002014-01-13T13:39:40.894+00:00The “lower risk of injustice” is more fully elabor...The “lower risk of injustice” is more fully elaborated in Hoffmann J’s decision in in Films Rover [1986] 3 All E.R. 772 at 780 (Ch.). <br /><br /> The principal dilemma about the grant of interlocutory injunctions. . . is that there is by definition a risk that the court may make the ‘wrong’ decision. . . . A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong.’<br /><br />In my view this is conceptually correct. The parties are treated symmetrically, and both the likely outcome on the merits and the adequacy of damages, must be taken into account. Adequacy of damages is the difference between damages which would likely be awarded and actual harm to the party in question; that is, it reflects the courts’ confidence that damages will be fully compensatory in fact. If the court cannot form any view on the merits in light of the available evidence (as in Cyanamid itself), then the outcome should favour the party who will suffer the greatest uncompensable harm. But if one party is very likely to prevail, it may succeed even though it will suffer relatively little uncompensable harm. Conversely, if a party is likely to suffer very great uncompensable harm, it may succeed on the injunction even though it is unlikely to ultimately prevail on the merits. The concern over turning application into a mini-trial, that drove the Lords in Cyanamid to resist an assessment of the merits, can be addressed by case management. As I understand it, the Films Rover approach is widely applied in the context of mandatory injunctions in the UK, and I do not understand why it is not equally accepted in the context of prohibitory injunctions, particularly as Hoffman J in Films Rover expressly noted that the distinction between the two is “barren.” But see Laddie J’s decision in Series 5 Software [1996] 1 All ER 853 (Ch.), arriving at essentially the same approach as Films Rover, apparently independently.<br /><br />Douglas Laycock, in his 1991 book, The Death of the Irreparable Injury Rule, finished, at 273, by endorsing a rule that is essentially the same as Hoffmann J.’s lower risk principle. A similar approach is advocated by John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525 (1978) and restated by Posner J, in his characteristically mathematical style, in American Hospital Supply (1986), 780 F.2d 589, 598 (7th Cir.). The difference is that the Leubsdorf-Posner approach draws a difficult distinction between irreparable and reparable harms which Hoffmann J.’s formulation avoids: see generally Laycock, at 118-123. <br /><br />I am familiar with this debate because the question of whether “irreparable harm” is a threshold test under Cyanamid has long been a matter of debate in Canadian law. The Federal Court of Canada will never grant an interlocutory injunction in a patent case on the view that any harm is monetary and can be compensated in damages: see Siebrasse, Interlocutory Injunctions and Irreparable Harm in the Federal Courts, (2010) 88 Canadian Bar Review 517. (Though we have a patent linkage system which largely provides a functional substitute for interlocutory injunctions in the patent context.) In contrast, other Canadian courts have now largely rejected any concept of a threshold, in favour of a “risk-balancing” approach that amounts to the same thing as Hoffmann J’s lower risk of injustice approach: see eg Potash Corp. of Saskatchewan 2011 SKCA 120. Justice Sharpe of the Ontario Court of Appeal, who is the author of a masterful treatise on Injunctions and Specific Performance, also endorses the risk-balancing approach.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.com