One of the main purposes of an interim injunction is to preserve the status quo until a trial of the action.
In the recent matter of the undated letters of resignations signed by Opposition Senators before their appointment under the Broad Seal by the Governor General, one former Senator, Arthur Williams sought among other relief – an injunction.
The injunction was sought to bar the Opposition Leader, Andrew Holness from filling two places in the senate that were vacant following Holness’ use of undated letters to remove the senators. Today, Justice Paulette Williams turned down Arthur Williams’ application for an injunction.
The status quo according to Lord Diplock is ‘the state of affairs existing in the period immediately preceding the application to the court’. In the undated letter matter of the moment, the status quo can be that there are two Senate seats now vacant. Or the status quo can be that the Opposition Leader was moving to fill those seats before the application for an injunction.
Deciding the status quo is important as it is a matter against which the judge hearing the injunction application has to weigh.
These are the guidelines that courts faced with an application for an injunction should take into consideration. They were established in the leading case of American Cyanamid Co v Ethicon Ltd  AC 396
(1) There must be a serious issue to be tried – simply put, the action must not be frivolous or vexatious and must have some prospect of succeeding. This is an easy test to satisfy. The court at this stage is not attempting to resolve any conflict of evidence in the parties affidavits- the resolution of those matters is for trial.
If the court takes the view that the substantive claim has no real prospect of success, then that is the end of the matter. The injunction will be denied. If however, the court takes the view that the claim has a real prospect of success, it then moves on to consider (2) below.
My view in relation to the undated letter is that there is a serious issue to be tried. And there should not be any great difficulty in the court finding that the matter brought by Arthur William is not frivolous or vexatious.
(2) If the court decides that there is a serious issue to be tried, it then moves on to assessing whether the person who brought the case can be compensated in damages (money). Damages will not be adequate in many cases such as where the loss complained of is irreparable such as loss of right to vote etc.
My view re the undated letter matter is that damages would not be appropriate means of compensation for Arthur Williams if he were to succeed at trial. These are high constitutional matters. No award of a sum of money would be enough to compensate for the principle at stake.
(b) whether the defendant would be adequately compensated in damages. My reasoning in relation to the above applies here. Additionally monetary compensation to Andrew Holness under the circumstances would not be an appropriate remedy.
(3) If the court decides that damages would not be an appropriate remedy it then moves to this next principle – the balance of convenience. Most cases for an injunction die or live on this limb. Under this category there are a myriad of matters that the court could consider. Each case carries with it some peculiar facts that the court would weigh under the balance of convenience.
Ultimately the principle that guides the court under this limb is the risk of injustice to one side or the other.
This is how I apply the balance of convenience in the undated letter saga. If the court were to grant the injunction to Arthur Williams, the following would happen:
(a) the Senate would be without two Senators for at least three months before the next court date. The court list is full and there are no dates for anytime this year.
(b) As a result of the above, the people of Jamaica would be deprived of two minds in the upper house particularly in a very fertile legislative year. The IMF deal with Jamaica means a number of Bills have to taken to parliament for debate and passage over the next two years or so.
(c) The ultimate loser in all of this would be the people of Jamaica.
On the other hand, if the injunction is refused, the Opposition could:
(a) be free to appoint new Senators
(b) the business of the Senate will go on with its full complement of eight Opposition members.
(c) there is little or no harm to Arthur Williams since he is not attending the Senate at the moment anyway.
Justice Paulette Williams will hand down written reasons for her decision to refuse the injunction application by Arthur Williams on Friday, the 29th day of November. I too look forward to reading her reasons.